ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20100715
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)	20041020 - 20050731  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  20050801	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20090219	Highest Rank:  
Length of Service:    Years    Months  25  Days
Education Level:  	AFQT:  72
MOS:  0311
Proficiency/Conduct Marks (# of occasions):   () /  ()	Fitness Reports:  

Awards and Decorations (per DD 214):	Rifle     (w/1 campaign star) ACM (w/1 campaign star) SSDR (2) GWOTSM NDSM NATO

Periods of UA/CONF:  CONF 20081209 - 20090101 (24 days)

NJP:  
- 20080810:	Article 92 (Failure to obey order or regulation, o/o 20080515)
	Article 112a (Wrongful use of controlled substance, hashish, o/o 20080515)
	Awarded: RIR (to E-2) FOP RESTR EPD  Suspended:  RESTR (suspend 6 months)

SCM:  
- 20081209:	Article  (Wrongful use of controlled substance, marijuana, o/o 20081015)
	Sentence: RIR (to E-1)   (20081209-20090101, 24 days)

SPCM:  

CC:   

Retention Warning Counseling:  NONE

Administrative Corrections to the Applicant’s DD 214

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

	  “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.  The Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 1 September 2001 until Present, Paragraph 6210, MISCONDUCT.

B.  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

1.	Applicant contends his discharge was improper/inequitable as his misconduct was a result of Post-Traumatic Stress Disorder (PTSD).
2.	Applicant contends he was not medically cleared to deploy on his second combat deployment, which led to his misconduct. 
3.	Applicant contends his misconduct consisted of only two isolated incidents in three years of otherwise honorable service.

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 Board 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 three decisional issues for the Board’s consideration.  The Board completed a thorough review of the circumstances that led to his discharge and the discharge process to ensure his discharge met the pertinent standards of equity and propriety.  The Applicant’s record of service did not include any 6105 retention counseling warnings, but did reflect   for  of the Uniform Code of Military Justice (UCMJ): Article  (Failure to obey an order or regulation, Battalion Commander’s order to not use illegal substances, o/o 15 May 2008 in Afghanistan) and Article  (Wrongful use, possession, etc of a controlled substance, hashish, o/o 15 May 2008 in Afghanistan as evidenced by his admission to the Company First Sergeant), and  summary court-martial for  of the UCMJ: Article  (Wrongful use, possession, etc of a controlled substance, marijuana, o/o 15 Oct 2008).  The Applicant  a pre-service drug waiver for using marijuana 45 times prior to entering the Marine Corps,  acknowledged  complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 19 Oct 2004.  Based on the Article 112a violation, processing for administrative separation is mandatory per the Marine Corps Separation and Retirement Manual (MARCORSEPMAN).  When notified of administrative separation processing using the  procedure on 5 Dec 2008, the Applicant   rights to consult with a qualified counsel, submit a written statement, and request an administrative separation board.  The Applicant was separated from the Marine Corps on 19 Feb 2009 with an Under Other Than Honorable Conditions discharge due to Misconduct (Drug Abuse).

Issues 1 and 2: (Decisional) ()  .  The Applicant contends his discharge was improper/inequitable as his misconduct was a result of PTSD, and he was not medically cleared to deploy on his second combat deployment.  The Board conducted a detailed review of the circumstances that led to the Applicant’s discharge and the discharge process to ensure his discharge met the pertinent standards of equity and propriety.  The Applicant’s medical records indicate that after his first combat deployment (Iraq: Sep 2006-May 2007), the Applicant was referred to the Camp Lejeune Mental Health Department for evaluation based on a recent post-deployment health assessment (PDHA) survey he had completed.  During the evaluation, the Applicant mentioned several incidents that he had recently experienced that were affecting him, to include: two friends killed in Iraq; one friend who had lost a limb; exposure to approximately 12 explosive blasts (two very close: IED blast to side of vehicle, and an RPG that knocked him off his post); shot or shot at a 10 year old child who had fired a rocket at him; loss of a relationship with his fiancée; and post-deployment leave period when his best friend’s mother and grandmother had been murdered by the mother’s boyfriend.  Upon completion of the mental health evaluation (22-24 Aug 2007), the attending psychologist diagnosed the following: Major Depressive Disorder with severe psychotic features; Post-concussion syndrome (with bilateral hearing loss from RPG blast); Injury due to late war effects; PTSD; and Bereavement without complications.  The Applicant was subsequently scheduled for continuing care therapy, and 

paperwork was initiated to place him on extended limited duty (no evidence in the records that the limited duty paperwork was ever routed to the Applicant’s command).  After several weeks of continuing care with some noted progress, the Applicant withdrew from participation, without his command’s awareness, due to a turnover of providers (felt the support structure he was comfortable with was not there anymore) and the desire to not be stigmatized as “weak” by his peers or chain of command.  On 7 Dec 2007, he was advised by the mental health department to attend follow-up appointments with deployment health services, but the records indicate he failed to show for two appointments.

The records indicate that the Applicant (though not medically cleared for full duty/worldwide deployment), three months later, was deployed with 24th MEU to Afghanistan in Mar 2008.  Just a few weeks into his second combat deployment, the Applicant’s mental and emotional health began to degrade (suicidal and homicidal thoughts).  In June 2008, he began to illegally use hashish obtained during combat operations in the field.  After admitting his illegal drug due to the Company First Sergeant, the Applicant was referred to battalion commander’s NJP for violation of UCMJ Articles 92 and 112a.  The Applicant was then removed from combat operations and sent to Kandahar Air Base for medical and mental health evaluation.  On 15 Aug 2008, the Applicant was diagnosed with: AXIS I Major Depressive Disorder, recurrent, without psychotic features, PTSD, Cannabis abuse; AXIS II Borderline and anti-social personality traits; AXIS III Chronic daily headaches; AXIS IV Recent NJP pending OTH, family issues, limited social support.  The psychiatrist recommended medical evacuation of the Applicant to CONUS for further mental health evaluation and substance abuse screening/treatment.  After return to Camp Lejeune, the Applicant was placed on limited duty (3 Oct 2008) for the medical board process.  On or about 15 Oct 2008, the Applicant tested positive for marijuana use during a urinalysis test and was subsequently referred to summary court martial, which was conducted on 9 Dec 2008.  The Applicant was found guilty of violation of UCMJ Article 112a and sentenced to forfeiture of pay, confinement for 30 days, and reduction in rank to E-1.  In accordance with the MARCORSEPMAN, the Applicant’s medical board process was halted, and he was processed for administrative separation from the Marine Corps for illegal drug abuse.

The Board found substantial evidence within the records that revealed the Applicant’s well-documented PTSD diagnosis after his return from Iraq in August 2007.  Unfortunately, the Applicant did not inform his command that he withdrew from his continuing care therapy nor that he should have been cleared for full duty before he was deployed to his second combat tour (Afghanistan).  After detailed review and careful consideration of all the available evidence, to include the Applicant’s purposeful failure to keep his command informed of his medical status and his willingness to jeopardize the lives of his fellow Marines by using illegal drugs while conducting combat operations within Afghanistan, the Board determined this issue did not provide a basis for which relief could be granted.  Relief denied.

The U.S. Department of Veterans Affairs (VA) has announced special access to combat veterans discharged under other than dishonorable conditions.  The VA determines the eligibility for enrollment independent of the Applicant’s characterization of service as determined by the Marine Corps.  Effective 28 January 2008, combat veterans discharged from active duty on or after 28 January 2003 are eligible for combat-veteran enhanced eligibility and enrollment placement into Priority Group 6 (unless eligible for higher enrollment Priority Group placement) for five years after discharge.  The Applicant, as a combat veteran, is encouraged to contact the VA for more information at http://www4.va.gov/healtheligibility/Library/pubs/CombatVet/CombatVet.pdf or 1-877-222-VETS (8387).

:  (Decisional) ()  .  The Applicant contends his misconduct consisted of only two isolated incidents in three years of otherwise honorable service.  The Applicant contends he was not a habitual drug user and only used drugs to deal with psychological issues related to his combat deployment to Iraq.  Despite a service member’s prior record of service, certain serious offenses warrant separation from the Naval Service in order to maintain good order and discipline; violation of Article 112a meets this standard.  The Applicant signed the USMC Drug Policy on 19 Oct 2004.  Additionally, he was granted a drug waiver to enlist in the Marine Corps after admitting illegal use of marijuana approximately 45 times prior to enlistment.  He was fully aware there is a zero-tolerance policy for drug abuse, and he acknowledged the consequences.  While he may feel combat stress and mental health issues were the underlying causes of his misconduct, the record clearly reflects his misconduct was willful and repetitive and demonstrated he was unfit for further service.  The evidence of record does not demonstrate the Applicant was not responsible for his conduct or he should not be held accountable for his actions.  An Under Other Than Honorable Conditions discharge is warranted when a Marine commits or omits an act that constitutes a significant departure from the conduct expected from a member of the Naval Service.  The Applicant’s conduct, which forms the primary basis for determining the character of service, reflects the Applicant failed to meet the requirements of conduct expected of all Marines, especially considering his experience and length of service, and falls short of what is required for an upgrade.  Relief denied.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service,  record entries and the administrative separation process, the Board found the discharge was proper and equitable at the time of discharge.  Therefore, the awarded characterization of service shall  UNDER OTHER THAN HONORABLE CONDITIONS and the narrative reason for separation shall remain .  The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of  discharge.  The Applicant is directed to the Addendum for additional information.

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