ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20101022
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)	20000503 - 20001017  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  20001018	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20050403	Highest Rank:  
Length of Service:    Year(s)    Month(s)  16  Day(s)
Education Level:  12	AFQT:  53
MOS:  0352
Proficiency/Conduct Marks (# of occasions):   () /  ()	Fitness Reports:  

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

Period of Confinement: Pre-Trial Confinement 20031118 - 20031202 [15 days]; Confinement 20031212 - 20040216 [67 days]

NJP:  

- 20010420:	Article  (UA 0801-1750, 20010416)
	Article 92 (Disobeying a lawful order or regulation)
	Awarded:    Suspended:  

- 20011102:	Article  (Drugs - cocaine) 
	Awarded:     Suspended:  

SCM:  

SPCM:  

- 20040217:	Article  (Drugs - methamphetamine)
	Sentence:   FOR 82 DAYS (Pre-Trial - 20031118 - 20031202 [15 days]; Conf - 20031212-20040216 [67 days])  

CC:  	

Retention Warning Counseling:  

- 20011102:	For illegal use of cocaine. 

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

	 Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized, should read: “Rifle Expert Badge (2nd Award), National Defense Service Medal, Iraq Campaign Medal, Combat Action Ribbon, Global War on Terrorism Expeditionary Medal, Sea Service Deployment Ribbon”

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 1105, DISCHARGE ADJUDGED BY SENTENCE OF 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)(a), 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

1.	Decisional issues: (Clemency) The Applicant contends that his punitive discharge warrants an upgrade via clemency due to mitigation of diagnosed Depression and Post-Traumatic Stress Disorder (PTSD), which resulted in illegal drug use as part of a suicide attempt.

Decision

Date:  20110405	   	  Location: Washington D.C.	   Representation: 

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

Discussion

In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  With respect to a discharge adjudged by a 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.  In response to the Applicant's clemency request, relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts.  The Board completed a thorough review of the Applicant’s issues, the circumstances that led to the Applicant’s discharge, and the discharge process, to ensure it met the pertinent standards of equity while determining if any factors in this particular case merited clemency.

The Applicant entered active duty military service on a Recruiting Station Commanding Officer waiver for pre-service drug use (marijuana) and a Recruiting District Commanding Officer wavier for dependents.  The Applicant signed the USMC Policy on Illegal Drug Use on 01 May 2000, acknowledging that he was fully aware of the Marine Corps Policy of zero tolerance for drug use.  Moreover, he acknowledged the consequences of violation of that policy, in writing, as a condition of his entry into active duty service.

The Applicant’s service record reflects that he is a combat veteran, having service in a combat theater of operations in support of Operation IRAQI FREEDOM I from 26 February 2003 to 22 May 2003.  Additionally, the Applicant’s record of service reflects a pre-combat deployment retention-counseling warning (6105 entry) and a non-judicial punishment for violation of Article 112(a) of the Uniform Code of Military Justice: wrongful use, possession, etc of a controlled substance - cocaine.  Based on the violation of Article 112(a), the Applicant was required to be processed for separation in accordance with the Marine Corps policy for drug abuse.  The Applicant’s service record does not reflect any actions having been taken by the Command regarding his confirmed use of a controlled substance.    

The Applicant’s service record further contains a post-combat-deployment trial by Special Court-Martial for violation of the UCMJ: Article 112(a) - illegal use of methamphetamines.  He was found guilty of the specified charge and was adjudged a reduction in rank to Private (E-1) and 85 days confinement.  The trial by Special Court-Martial was reviewed and affirmed by the U.S. Navy-Marine Corps Court of Criminal Appeals on 28 January 2005 and the Bad Conduct Discharge was ordered executed.  The Navy-Marine Corps Appellate Leave Activity affirmed and ordered executed the Bad Conduct Discharge on 06 April 2005.

Issue 1: (Decisional) ()  PARTIAL .  The Applicant contends that his punitive discharge warrants an upgrade via clemency due to mitigation factors of his in-service diagnosed Depression and PTSD, which resulted in illegal drug use as part of a suicide attempt.  The Applicant seeks an upgrade in characterization of service at discharge from a Bad Conduct Discharge to an Honorable discharge.

The Applicant entered active duty service with a pre-service drug use waiver and counseling in writing that he fully understood the Marine Corps Policy on illegal drug use.  Within a year of being on active duty, the Applicant was found guilty of violating Article 112(a) of the UCMJ for illegal use of a controlled substance - cocaine.  The Applicant’s command did not administratively process him for separation in accordance with the Marine Corps Policy, and he was afforded an opportunity to 

correct his deficiencies and continue his active duty service.  The Applicant deployed to Operation IRAQI FREEDOM in February 2003.  The Applicant’s service and medical records include a post-combat deployment history of an attempted suicide compounded with the illegal use of methamphetamines.  The Applicant was court-martialed and received a Bad Conduct Discharge and confinement.  While in service, the Applicant was diagnosed by appropriately credentialed mental health care providers with a Major Depressive Disorder and a Panic Disorder, with a concern to rule out PTSD.  The Applicant provided his post-service mental health treatment records that document he was evaluated and diagnosed with chronic PTSD.    

Though the Applicant had misconduct involving the illegal use of drugs prior to deployment, the Applicant’s Command did not process him for administrative separation and afforded him the opportunity to correct his deficiencies.  The Applicant extended his enlistment contract in order to have enough active duty obligated service to deploy with the Marine Expeditionary Unit to Operation IRAQI FREEDOM.  The Applicant conducted himself with honor in combat.  The Applicant contends his PTSD was a mitigating factor in his misconduct.  Civilian psychiatrists and counselors, who have been treating the Applicant since discharge, agree and support the medical diagnosis of PTSD.  

Based on a review of the medical evidence and the unique nature and circumstances of this case, the NDRB determined the Applicant’s diagnosed Depression and chronic PTSD were mitigating factors associated with his in-service misconduct as related to his Special Court-Martial on 17 February 2004.  However, the NDRB does not consider PTSD as a reason to completely absolve the Applicant of his misconduct and determined an upgrade to Honorable would not be appropriate.  Based on equity, the NDRB voted unanimously to upgrade the characterization of service to Under Other Than Honorable Conditions, but not change the narrative reason for separation.  As such, partial relief is warranted.  Full relief to Honorable was not granted due to the repeated use of illegal drugs while on active duty.     

Summary:  After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Service Record entries, Medical Record entries, post-service veterans treatment records, and the issues submitted for consideration by the Applicant, the Board found partial clemency was warranted.  Therefore, the awarded characterization of service shall change to UNDER OTHER THAN HONORABLE CONDITIONS, but the narrative reason for separation shall remain 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, Employment and Educational Opportunities, 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