ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20100730
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)	20060208 - 20060521  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  20060522	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20090921	Highest Rank:  
Length of Service:    Years    Months  00  Days
Education Level:  	AFQT:  49
MOS:  3521
Proficiency/Conduct Marks (# of occasions):   () /  ()	Fitness Reports:  

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

Periods of UA/CONF:  

NJP:  
- 20070927:	Article 92 (Failure to obey order or regulation, underage drinking, 20070914)
	Awarded:  RESTR EPD   Suspended:  NONE

- 20090118:	Article 92 (Failure to obey order or regulation, wrongfully using an inhalant to induce intoxication, excitement or stupefaction, Iraq, o/o 20090113)
	Awarded:  RIR (to E-2) FOP RESTR EPD   Suspended:  FOP (suspend 6 months)

SCM:  		SPCM:  	CC:  

Retention Warning Counseling:  
-20070801:	For being dropped from the rifle range for a lost military ID card and missing movement
-20070905:	For making a false statement to the Company 1st Sergeant, not having car insurance, operating POV without a driver’s license, and failure to have vehicle registered on base
-20090118:	For failure to obey order or regulation

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative errors on the original DD Form 214:

	Block 13, Decorations, medals, badges, citations and campaign ribbons awarded or authorized, should read: “SEA SERVICE DEPLOYMENT RIBBON, IRAQ CAMPAIGN MEDAL (W/1 CAMPAIGN STAR), GLOBAL WAR ON TERRORISM SERVICE MEDAL, NATIONAL DEFENSE SERVICE MEDAL, CERTIFICATE OF COMMENDATION (UNIT AWARD), MERITORIOUS MAST, RIFLE MARKSMANSHIP BADGE
	  “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 based on improper NJP procedure and misconduct committed by his chain of command.  
2.	Applicant contends his discharge was inequitable based on his service records and having served two tours in Iraq.
3.	Applicant contends Post-Traumatic Stress Disorder (PTSD) mitigates the drug misconduct for which he was separated.

Decision

Date:  20120105		Location: Washington D.C.	 Representation: 

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

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 Board completed a thorough review of the circumstances that led to  discharge and the discharge process to ensure  discharge met the pertinent standards of equity and propriety.  The Applicant’s record of service included three 6105 retention counseling warnings.  The record also reflected two  for  of the Uniform Code of Military Justice (UCMJ): Article  (Failure to obey an order or regulation, 2 specifications: underage drinking, 14 Sep 2007 and wrongfully using an inhalant to induce intoxication, excitement, or stupor, while deployed to Iraq, o/o 13 Jan 2009).  The record also revealed the Applicant had a pre-service drug waiver for using marijuana  prior to entering the Marine Corps  acknowledged his complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs during his enlistment accession processing.  Based on the Article 112a violation (wrongfully using an inhalant to induce intoxication, excitement, or stupor), processing for administrative separation is mandatory per the Marine Corps Separation and Retirement Manual (MARCORSEPMAN).  When notified of administrative separation processing (for Pattern of Misconduct and Drug Abuse) using the  procedure on 16 Mar 2009, the Applicant  his rights to consult with a qualified counsel, submit a written statement, and request an administrative separation board.  On 5 Aug 2009, the Applicant’s Battalion Commanding Officer submitted his final endorsement recommending the Applicant be separated from the Marine Corps with an Under Other Than Honorable Conditions discharge due to pattern of misconduct and drug abuse.  His endorsement stated, “(Applicant) was screened for PTSD.  Though his cumulative score from his responses may cause concern, his previous evaluations at MHU have indicated that his symptoms of PTSD are resultant from childhood events.  No direct link with mil svc has been established in (Applicant’s) psych examinations and he has knowingly and willingly refused further evaluation.”  On 18 Aug 2009, the Regimental Commander endorsed the Battalion Commander’s endorsement, stating “Repeat viol UCMJ, aloof attitude, medical evaluations, unpredictability place an undue burden on command and USMC.  2x OIF, evaluated for PTSD.”  On 16 Sep 2009, the Separation Authority (Commanding General) directed that the Applicant be administratively discharged for drug abuse as recommended by his chain of command.  The Applicant was separated from the Marine Corps on 21 Sep 2009 with an Under Other Than Honorable Conditions discharge due to Misconduct (Drug Abuse).

:  (Decisional) (Propriety/Equity)  RELIEF NOT WARRANTED.  The Applicant contends his discharge was improper/inequitable based on improper NJP procedure and misconduct committed by his chain of command.  The NDRB is not an investigative body, and allegations of command legal or administrative impropriety should be made to the Naval Inspector General’s Office.  Allegations notwithstanding, the NDRB, after thorough review of the Applicant’s service records, could find no evidence to support the Applicant’s contention of command legal and/or administrative impropriety.  Relief denied.

:  (Decisional) ()  .  The Applicant contends his discharge was inequitable based on his service records and having served two tours in Iraq.  Despite a service member’s prior record of service and/or service in support of combat operations, 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 obtained an enlistment waiver for his pre-service marijuana use and also signed the USMC Drug Policy during his enlistment accession processing.  He was fully aware there is a zero-tolerance policy for drug abuse, and he acknowledged the consequences.  While he may feel his length of service and combat deployments to Iraq override or somehow mitigate his misconduct, the record clearly reflects his misconduct as willful 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 Marine.  The Applicant’s conduct, which forms the primary basis for determining the character of service, reflects the Applicant’s willful failure to meet the requirements of conduct expected of all Marines, regardless of his grade or length of service, and falls short of what is required for an upgrade in the characterization of service.  Relief denied.

:  (Decisional) ()  .  The Applicant contends PTSD mitigates the drug misconduct for which he was separated.  While he may feel this was the underlying cause of his misconduct, the record contains no evidence to support his contention that he was not responsible for his actions.  On the contrary, the record clearly reflects his misconduct was willful and demonstrated he was unfit for further service.  During his administrative separation processing, the Applicant received numerous evaluations to determine whether he suffered any effects of post-traumatic stress (a policy enacted during Operations Iraqi Freedom and Enduring Freedom to ensure all personnel are screened for PTSD and Traumatic Brain Injury prior to separation from service).  The evaluations found no evidence of traumatic event exposure or effects from traumatic events with the exception of several pre-service events that included the death of his uncle, an undetermined cause of death of his grandfather, and the death of his high school girlfriend as a result of a drunken driver.  The NDRB recognizes that serving in support of combat operations is challenging.  However, all members of the Naval Services are expected to uphold the high standards of conduct as evidenced in our Core Values of Honor, Courage, and Commitment, regardless of the environment or mission in which assigned.  After careful consideration of all the available evidence, the Board determined this issue to be without merit and 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).

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   Therefore, the awarded characterization of service shall   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