ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20100615
Characterization of Service Received:  
Narrative Reason for Discharge:  
Authority for Discharge:  MARCORSEPMAN 

Applicant’s Request:	Characterization change to: 
	Narrative Reason change to: 

Summary of Service

Prior Service:
Inactive:	USMCR (DEP)	19981207 - 19990713  	Active:	 19990714 - 20021208 HON

Period of Service Under Review:
Date of Current Enlistment:  20021209	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20051221	Highest Rank:  
Length of Service:    Years    Months  12  Days
Education Level:  	AFQT:  35
MOS:  0621
Proficiency/Conduct Marks (# of occasions):   / 	Fitness Reports:  

Awards and Decorations (per DD 214):	Rifle  Pistol MM      (2)  

Periods of UA/CONF:  

NJP:  

- 20031002:	Article 121 (Larceny and wrongful appropriation; stole POV license plates)
	Article 134 (General article; unlawfully carried concealed weapon in POV)
	Awarded:    Suspended:  

SCM:  

SPCM:  

- 20050105:	Article  (False official statement; made a false official statement to NCIS SA regarding niacin tablet bottle)
	Article 112a (Wrongful use of controlled substance, marijuana, 3 specifications)
	Sentence: RIR  90 Days   - (CA ACTION 20050309)
	**Navy-Marine Corps Court of Criminal Appeals, 20051214, set aside the findings and sentence in the special court martial and returned to convening authority for action.
	
CC:  

Retention Warning Counseling:  

- 20040512:	For assignment to Marine Corps Body Composition Program

Administrative Corrections to the Applicant’s DD 214

The NDRB noted an administrative error on the original DD Form 214:

	 Character of Service, should read: “UNDER OTHER THAN HONORABLE CONDITIONS”

The NDRB will recommend to the Commandant of the Marine Corps that the DD 214 be corrected as appropriate.

Types of Documents Submitted/reviewed

Related to Military Service:
	DD 214:		Service/Medical Record:		Other Records:	

Related to Post-Service Period:
	Employment:		Finances:		Education/Training:	
	Health/Medical Records:		Rehabilitation/Treatment:		Criminal Records:	
	Personal Documentation:		Community Service:		References:	
	Department of VA letter:		Other Documentation:	
		Additional Statements:
	From Applicant:		From/To Representation:		From/To Congress member:	

Pertinent Regulation/Law

A.  Paragraph 6419, SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 1 September 2001 until Present.

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part IV, Para 403m(7)(b), Presumption Concerning Court-Martial Specifications.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs, Part V, Para 502, Propriety and Para 503, Equity.

DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

Nondecisional Issues: The Applicant seeks an upgrade in the characterization of his discharge in order to facilitate Department of Veterans Affairs (VA) benefits eligibility 

Decisional issues: The Applicant contends that the Under Other Than Honorable characterization was inequitable in that his misconduct of record was mitigated by symptoms from undiagnosed Post-Traumatic Stress Disorder (PTSD).  

Decision

Date:  20111019	                   Location: Washington D.C.	 Representation: 

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  .

Discussion

In accordance with U.S. Code, Title X, Section 1553 (d)(1), the Naval Discharge Review Board included a member who is a physician, clinical psychologist, or psychiatrist.  In accordance with section 1553 (d)(2), the service secretary expedited a final decision and accorded the case sufficient priority to achieve an expedited resolution.

The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and the reason for discharge if such change is warranted.  In reviewing discharges, the NDRB presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  The Applicant identified one decisional issue to the NDRB for consideration.  Additionally, the NDRB completed a thorough review of the circumstances that led to the Applicant’s discharge, and the discharge process, to ensure the discharge met the pertinent standards of equity and propriety.  

The Applicant entered active duty military service at age 18 on a four-year contract with a guarantee of communications training.  He entered the service with waiver to enlistment conditions or standards due to pre-service illegal drug use (marijuana).  The Applicant completed this 4 year obligated period of service honorably and was reenlisted immediately for a second period of enlistment of 4 years and 8 months on 09 December 2002.  The Applicant’s record of military service further documents that he is a combat veteran, having deployed with an Infantry Battalion Landing Team to conduct combat operations in the Al-Anbar Province, Iraq in support of Operation IRAQI FREEDOM (OIF I) commencing in March 2003 with a termination date that was not determinable, but included a period of service of approximately 2 months.    

The Applicant’s record of service documents one retention-counseling warning in accordance with paragraph 6105 of the Marine Corps Separation and Retirement Manual (MARCORSEPMAN) and one nonjudicial proceeding for violation of Article 121 (Larceny) and Article 134 (General Article - concealed weapon violation) of the Uniform Code of Military Justice (UCMJ).  Moreover, the Applicant was subject to a Special Court-Martial on 05 January 2005 for violations of Article 107 (False official statement) and Article 112(a) (Wrongful use, possession, etc of a controlled substance - 3 specifications of wrongful use of marijuana).  The charges were preferred against the Applicant pursuant to a Naval Criminal Investigative Service (NCIS) investigation into drug sales, use, and trafficking in the Beaufort, SC local area to military members.  The Applicant documented in his voluntary statement that he had used marijuana in both Beaufort, SC and in Jacksonville, NC.  Additionally, the evidence of record documents that the Applicant was also using an over-the-counter substance to cleanse his urine in order to avoid being caught during urinalysis testing.  With respect to a Special or General Court-Martial, material facts as stated in a court-martial are presumed by the NDRB to be facts.  The Applicant pled guilty in trial by judge alone and was adjudged a Bad Conduct Discharge, reduction in rank to E-1 (private), and 90 days confinement.  Due to a failure by the government to comply with one of the provisions of the pre-trial agreement, the Navy and Marine Corps Court of Criminal Appeals set aside the findings and the sentence and returned the record of trial to the Convening Authority for a rehearing.  

The Applicant, who was on Appellate leave pending judicial review of his case, chose to request separation in lieu of a new trial by court-martial.  The Applicant’s military record contains a complete copy of the separation proceedings.  In order to warrant separation in lieu of trial by court-martial, the Applicant must request separation - in writing - for the good of the service to escape charges that have been preferred against the Applicant and referred to trial by a Special Court-Martial or above.  The Applicant submitted a written request for a separation in lieu of trial by court-martial with a General (Under Honorable Conditions) request for the characterization of his service.  The request for separation was dated 29 November 2005; it was endorsed by the chain of command, recommending approval with an Under Other Than Honorable Conditions characterization of service.  The Separation Authority approved the request on 13 December 2005, directing separation under other than honorable conditions with an RE-4 reentry code (not recommended for reenlistment).  The Applicant was separated on 21 December 2005.      

(Nondecisional Issues) - The Applicant seeks an upgrade in the characterization of his discharge in order to facilitate VA benefits eligibility.  This is an issue which the NDRB cannot form the basis of relief for the Applicant, or  the NDRB does not have the authority to grant the relief for which the Applicant has petitioned.  There is no requirement, or law, that grants re-characterization solely on the issue of facilitating employment opportunities; as such, the NDRB has no authority to upgrade a discharge solely for this purpose and cannot form a basis of relief to act. 

(Decisional Issue) ()  .  The Applicant contends that the Under Other Than Honorable Conditions characterization was inequitable in that his misconduct of record was mitigated by symptoms from undiagnosed PTSD.  The NDRB reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis.  If such a review reveals an impropriety or inequity, relief is in order.  Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval Service.  

(Propriety) - Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the Naval Service in order to maintain good order and discipline.  Violation of Article 112 (a) is one of those offenses.  Violation of the Marine Corps Policy on Illegal Drug Use requires mandatory processing for separation.  This process usually results in an unfavorable characterization of service at discharge or, at a maximum, a punitive discharge, and possible confinement if adjudicated and awarded as part of a sentence by a Special or General Court-Martial.  The Applicant requested administrative separation for the good of the service in order to avoid re-trial by Special Court-Martial; he consulted with and was represented by an appropriately credentialed legal defense counsel throughout the separation process.  This type of request for separation must contain certain basic requirements - which must be satisfied - before receiving approval by the Separation Authority.  In his request, the Applicant clearly affirmed that his rights were explained to him thoroughly - to include his right to consult with qualified counsel, which he did.  Furthermore, the Applicant admitted his guilt to the charges preferred against him and further certified that he had a complete understanding of the negative consequences of his actions, the narrative reason for his separation, and the likely characterization of service upon separation - Under Other Than Honorable Conditions.  The respondent acknowledged that if discharged with an OTH, it might deprive him of virtually all veterans benefits and that he might expect to encounter substantial prejudice in civilian life in situations wherein the type of service rendered, or the character of discharge received, may have a bearing.  The request for separation satisfied all the elements as established by the MARCORSEPMAN; as such, the command accepted the Applicant’s request.  The NDRB determined that the Applicant was discharged properly from the Naval Service in accordance with chapter 6419 of the MARCORSEPMAN; accordingly, relief based on propriety is not warranted.

(Equity) - The Applicant contends that the Under Other Than Honorable Conditions characterization was inequitable in that his misconduct of record was mitigated by symptoms from undiagnosed PTSD.  The Applicant is a combat veteran with a post-service diagnosis of PTSD - diagnosed by appropriately credentialed mental health care providers working with the Department of Veterans Affairs.  There is no evidence in either the Applicant’s service record or his medical record of any problems or symptoms manifesting during his enlistment from his service in OIF.  The Applicant’s record documents no attempts to seek any help for any combat stress related symptoms while in service.  Given the facts and statements documented in the NCIS investigation (the Applicant’s admission to using marijuana to relax and avoid the stress from ongoing marital discord), coupled with his deliberate use of cleansing drugs to avoid testing detection, and his continued illegal drug use after being caught by the command, the NDRB determined that the diagnosis of PTSD was not a mitigating factor for the Applicant’s willful and deliberate misconduct - violation of Article 112 (a), three times.
 
Characterization of service at discharge is the recognition of a Marine’s performance and conduct during a period of enlistment and is not necessarily dependent upon the narrative reason for separation.  When the quality of a member’s service has met the standards of accepted conduct and performance of duty for military personnel, it is appropriate to characterize that service under Honorable conditions.  An Under Other Than Honorable Conditions characterization of service, however, is warranted 

when a member engages in conduct involving one or more acts or omissions that constitute a significant departure from the conduct expected of members of the Naval Service.  The Applicant enlisted with a waiver for pre-service marijuana use, continued that use of illegal drugs in service (in violation of the UCMJ and the Marine Corps Policy on Illegal Drugs), and then, after being recommended for punitive court-martial, continued his use of illegal drugs and his affiliation with drug users and dealers.  The NDRB determined that this misconduct was not mitigated by his combat service nor his PTSD diagnosis and did reflect acts or omission that constituted a significant departure from that conduct expected of a service member.  

Given the facts of the record, the information provided by the Applicant, and consideration of the Applicant’s wartime service, the NDRB determined that the Applicant’s conduct, which forms the primary basis for determining the characterization of service, reflected one or more acts or omissions that did constitute a significant departure from the conduct expected of members of the Naval Service.  The NDRB further determined that the narrative reason for separation and the resulting characterization of service at discharge was proper, was equitable, was warranted, and was and remains consistent with the characterization of discharge given others in similar circumstances.  As such, the NDRB determined that the Applicant’s characterization of service at discharge was appropriate.  Accordingly, relief is denied.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service,  record entries, and discharge process, the NDRB determined that   Therefore, the awarded characterization of service shall   and the narrative reason for separation shall remain IN LIEU OF TRIAL BY COURT MARTIAL.  The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of his discharge.  The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews and Post-Service Conduct.

ADDENDUM:  Information for the Applicant

Complaint Procedures:  If you believe the decision in your case is unclear, not responsive to the issues you raised, or does not otherwise comport with the decisional document requirements of DoD Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction to the Joint Service Review Activity, OUSD (P&R) PI-LP, The Pentagon, Washington, DC  20301-4000.  You should read Enclosure (5) of the Instruction before submitting such a complaint.  The complaint procedure does not permit a challenge of the merits of the decision; it is designed solely to ensure that the decisional documents meet applicable requirements for clarity and responsiveness.  You may view DoD Instruction 1332.28 and other Decisional Documents by going online at “http://Boards.law.af.mil.”

Additional Reviews:  After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s date of discharge.  The Applicant can provide documentation to support any claims of post-service accomplishments or any additional evidence related to this discharge.  Representation at a personal appearance hearing is recommended but not required.  There are veterans organizations such as the American Legion and the Disabled American Veterans that are willing to provide guidance to former service members in their efforts to obtain a discharge upgrade.  If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted their opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

Service Benefits:  The U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB.  There is no requirement or law that grants recharacterization solely on the issue of obtaining veterans benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.

Employment/Educational Opportunities:  The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.

Reenlistment/RE-code:  Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to change a reenlistment code.  Only the BCNR can make changes to reenlistment codes.  Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities.  An unfavorable “RE” code is, in itself, not a bar to reenlistment.  A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.

Medical Conditions and Misconduct:  DoD disability regulations do not preclude a disciplinary separation.  Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons.  Whenever a member is being processed through the Physical Evaluation Board, and is processed subsequently for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended pending the outcome of the non-disability proceedings.  If the action includes either a punitive or administrative discharge for misconduct or for any basis wherein an Other Than Honorable discharge is authorized, the medical board report is filed in the member’s terminated health record.  Additionally, the NDRB does not have the authority to change a narrative reason for separation to one indicating a medical disability or other medical related reasons.  Only the BCNR can grant this type of narrative reason change.

Automatic Upgrades - There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct subsequent to leaving naval service.

Post-Service Conduct:  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review, is considered during Board reviews.  Documentation to support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificates (if applicable); character witness statements; documentation of community or church service; certification of non-involvement with civil authorities; evidence of financial stability or letters of good standing from banks, credit card companies, or other financial institutions; attendance at or completion of higher education (official transcripts); and documentation of a drug-free lifestyle.   The Applicant is advised that completion of these items alone does not guarantee the upgrade of an unfavorable discharge, as each discharge is reviewed by the Board on a case-by-case basis to determine if post-service accomplishments help demonstrate  in-service misconduct was an aberration and not indicative of the member’s overall character.

Issues Concerning Bad-Conduct Discharges (BCD): Because relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts, issues relating to the Applicant’s innocence of charges for which he was found guilty cannot form a basis for relief.  With respect to a discharge adjudged by a special court-martial, the action of the NDRB is restricted to upgrades based on clemency.  Clemency is an act of leniency that reduces the severity of the punishment imposed.  The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

Board Membership:  The names and votes of the members of the NDRB Board are recorded on the original of this document and may be obtained from the service records by writing to:

Secretary of the Navy Council of Review Boards
Attn:  Naval Discharge Review Board
720 Kennon Street SE Rm 309
Washington Navy Yard DC  20374-5023