ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20100824
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)	20030808 - 20031214  	Active:	  20031215 - 20080301 HON

Period of Service Under Review:
Date of Current Enlistment:  20080302	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20100129	Highest Rank:  
Length of Service:    Year(s)    Month(s)  27  Day(s)
Education Level:  	AFQT:  31
MOS:  0621
Proficiency/Conduct Marks (# of occasions):  / 	Fitness Reports:  

Awards and Decorations (per DD 214):	Rifle  (3rd Awd), Pistol ,  (2d Awd w/1 Combat “V”), ACM,  (Iraq)  (4th Awd), ICM (w/2 Bronze Service Stars),  (Iraq), , 

NJP:  

- 20080804:	Article  (UA), 2 specifications
	Specification 1:  0700-0735, 20080724)
	Specification 2:  0730-0950, 20080725) 
	Awarded:     Suspended:  

- 20100112:	Article  (Failed to go to appointed place of duty - Seps/Tamps course)
	Awarded:   Suspended:  

SCM:  

- 20091204:	Article  (Wrongfully use marijuana) 
	Sentence:  (20091204 - 20091227, 24 days)  

SPCM:  

CC:  

Retention Warning Counseling:  

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.	Nondecisional issues: None 

2.	Decisional issues: The Applicant contends that his misconduct was an isolated incident in what was an otherwise honorable seven years of faithful and loyal service and the characterization of his service at discharge was inequitable based on his combat service in Iraq and his in-service diagnosis of Post-Traumatic Stress Disorder (PTSD).

Decision

Date:  20101220		Location: Washington D.C.	 Representation: 

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

Discussion

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 one decisional issue to the NDRB – Equity of the issued characterization of service.

In reviewing the Applicant’s request, the NDRB completed a thorough review of the circumstances leading to his discharge, and the discharge process, to ensure the discharge met the pertinent standards of equity and propriety.  The Applicant’s service record reflects entry into the armed service with a pre-service waiver for marijuana use.  The Applicant acknowledged his complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs, in writing, on 07 August 2003.  The Applicant’s record of service included no 6105 retention counseling warnings and two nonjudicial punishments for violations of the Uniform Code of Military Justice (UCMJ); specifically, Article 86 (Absence without leave – 3 specifications of failure to be at, and failure to go to, his appointed place of duty).  In addition, the Applicant was subject to one Summary Court-Martial (SCM) for violation of the UCMJ: Article  (Wrongful Use, Possession, etc. of a Controlled Substance – marijuana).  Based on the Article 112a violation, processing for administrative separation was mandatory.  When notified of administrative separation processing using the  notification procedure, the Applicant exercised his right to consult with a qualified counsel but did not submit written matters for the Separation Authority’s consideration and did not request an administrative board hearing.

The Applicant’s service record reflects that he is a combat veteran, having deployed to the Al-Anbar province of Iraq in support of Operation IRAQI FREEDOM.  The Applicant’s record of service documents three combat deployments with the 2nd Air Naval Gunfire Liaison Company (ANGLICO) and a fourth combat deployment with the 6th Marine Regiment.  The Applicant re-enlisted – while in theater – for a second four-year enlistment period.  Furthermore, his combat service included the awarding of the Combat Action Ribbon, an Army Commendation Medal, and two Navy and Marine Corps Achievement medals - one awarded with the combat “V” distinguishing device for individual valor.

: (Decisional) ()  PARTIAL .  The Applicant contends that his misconduct was an isolated incident in what was an otherwise honorable seven years of faithful and loyal service to the Nation and the characterization of his service at discharge was inequitable - based on both his combat service in Iraq and his in-service diagnosis of PTSD.  Despite a service member’s prior record of service, certain serious offenses, even though isolated, warrant separation from the Naval service in order to maintain proper order and discipline.  The wrongful use of drugs is one of those serious offenses; processing for separation is mandatory and the service norm is either an administrative separation discharge with an Under Other Than Honorable Conditions characterization of service or a punitive Bad Conduct discharge.  The Applicant does not rebut the Summary Court-Martial or the finding that he used illegal drugs; in fact, the Applicant admitted his wrongful use to his command, acknowledged his misconduct, and pled guilty at Summary Court-Martial.  

The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  The NDRB found there was credible evidence in the record that the Applicant used illegal drugs, that the Applicant was afforded all of his rights, and that the mandatory processing for separation required for Marines who wrongfully use illegal drugs was proper; therefore, the board determined that no change in the narrative reason for separation is warranted.

The NDRB recognizes that serving in the Marine Corps is very challenging.  Most Marines serve honorably and therefore earn honorable discharges.  In fairness to those Marines, commanders and separation authorities are tasked to ensure that undeserving Marines receive no higher characterization than is due.  An Honorable characterization of service is warranted when the quality of a member’s service generally meets the standard of acceptable conduct and performance for naval personnel, or is otherwise so meritorious that any other characterization of service would be clearly inappropriate.  However, a General (Under Honorable Conditions) discharge is warranted when the quality of the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service record.  A discharge Under Other Than Honorable Conditions 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.  

In determining discharge characterization of service, the Applicant’s conduct forms the primary basis for consideration.  The Applicant’s in-service conduct was marred by two non-judicial punishments for minor infractions and a Summary Court-Martial for violation of Article 112a of the UCMJ; this was a willful failure to meet the requirements of his contract honorably.  However, the Applicant contends his PTSD was a mitigating factor in his misconduct, which warrants consideration.  The Applicant’s official military service record diagnosis of PTSD, coupled with additional post-service documentation provided by the Applicant, support the Applicant’s contention that his PTSD was a mitigating factor associated with the in-service misconduct.  Moreover, the NDRB determined that the unique circumstances of this individual case, coupled with the documented PTSD diagnosis, and the Applicant’s heroic and meritorious service in combat while placing himself at great risk to his life, warranted additional consideration in the determination of overall characterization of service.  As such, by a vote of 5-0, the NDRB found that the awarded characterization of service was inequitable and that relief in the form of an upgrade in the characterization of service to General is warranted.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service, medical and service record entries, and the discharge process, the NDRB found   Therefore, the narrative reason for separation shall remain , however, the awarded characterization of service shall be changed to .  

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, 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