ex-, USMC 

Current Discharge and Applicant’s Request

Application Received:  20110830
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)	20010727 - 20010911  	Active:	 20010912 - 20050128 HON		
				USMC 20050129 - 20090225 HON

Period of Service Under Review:
Date of Current Enlistment:  20090226	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20101009	Highest Rank:  
Length of Service:    Year    Months  14  Days
Education Level:  12	AFQT:  35
MOS:  0311/0933
Proficiency/Conduct Marks (# of occasions):  4.3 / 3.9	Fitness Reports:  

Awards and Decorations (per DD 214):	Rifle EX (2) Pistol EX, PH, ACM, ICM (2), GWOTEM, GWOTSM, HSM (2), GCM (2), NDSM, NATO Medal (Afghanistan), OSR, SSDR (3)

Periods of UA/CONF:  

NJP:  2

- 20090422:	Article 92 (Failure to obey order or regulation, driving under the influence of alcohol)
	Awarded: RIR FOP RESTR EPD Suspended:  

- 20100430:	Article 112(a) (Wrongful use, possession, etc. of controlled substances - wrongful use of steroids)
	Awarded: RIR FOP RESTR EPD Suspended:  

SCM:  NONE     	SPCM:       	CC:       	Retention Warning Counseling:  NONE 

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:	

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

Applicant’s Issues

Decisional Issues: (1) The Applicant contends his characterization of service at discharge was inequitable; his misconduct was an isolated incident in what was an otherwise outstanding military career that included previous honorable enlistments, his meritorious service in combat, and the awarding of the Good Conduct Medal and Purple Heart.  (2) The Applicant contends that his misconduct of record was the result of stress from depression and anxiety related to undiagnosed Post-Traumatic Stress Disorder (PTSD), and, as such, warrants consideration as an extenuating and mitigating factor to his discharge and the characterization of service received.  (3) The Applicant contends that he was not offered treatment services for his drug abuse while in service.

Decision

Date:  20120322                 	Location: Washington D.C.	  Representation: NONE

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

Discussion

The NDRB reviewed the Applicant’s personal statement; the Applicant stated that he was suffering from PTSD related to his combat service in Iraq and Afghanistan.  As such, in accordance with U.S. Code, Title 10, Section 1553 (d) (1), the board included a member who is a physician, clinical psychologist, or psychiatrist.  Additionally, 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’s enlistment record reflects entry into military service without any waivers to enlistment and induction standards at age 18, on a four-year enlistment, with a guaranteed contract of Infantry Option.  During the enlistment process, the Applicant acknowledged his complete understanding of the Marine Corps Policy Concerning the Illegal Use of Drugs - in writing - on 22 July 2001.  The Applicant completed his initial four-year obligation and executed an immediate reenlistment for a second four-year obligation.  While deployed in Taqaddum, Iraq, the Applicant reenlisted on his current enlistment obligation.

The Applicant’s service record documents participation in contingency operations in four separate hostile fire/imminent danger pay areas throughout his enlistments as an Infantryman and Marine Security Guard; these operational areas included Liberia, Philippines, Iraq (OIF x 2), and Afghanistan (OEF).  The Applicant conducted combat operations in the Al-Anbar province of Iraq in support of Operation IRAQI FREEDOM (OIF), twice, and in Afghanistan in support of Operation ENDURING FREEDOM.  The military service record further documents that he received the Purple Heart Medal for wounds received while conducting combat actions against an opposing force.

The Applicant’s record of service included two nonjudicial punishments (NJPs) for violations of the Uniform Code of Military Justice (UCMJ): Article 92 (Failure to obey order or regulation, driving under the influence of alcohol) and Article 112(a) (Wrongful use, possession, etc. of controlled substance - steroids).  The Applicant did not have a pre-service waiver for illicit drug use prior to entering the Marine Corps.  Based on the Article 112(a) violation, processing for administrative separation was mandatory by acknowledged service policy.  Given the circumstances surrounding the illegal steroid use, the Command opted to refer this violation of the UCMJ to a trial by Special Court-Martial; however, the Applicant elected to enter into a pre-trial agreement in which he sought nonjudicial punishment in return for his plea of guilty and his wavier of any administrative separation board procedures.  The Applicant was notified - in writing - of the Command’s intent to process the Applicant for administrative separation for Misconduct (Drug Abuse) in accordance with paragraph 6210.5 of the Marine Corps Separation and Retirement Manual (MARCORSEPMAN).  When notified of administrative separation processing using the  notification procedure, the Applicant exercise  right to consult with a qualified legal defense counsel but waived his right to provide a written statement for consideration by the Separation Authority.  Furthermore, the Applicant expressly waived his right to 

request an administrative hearing board be held in order to present his case for retention or characterization.  The Applicant was advised that the least favorable characterization of his service at discharge was Under Other Than Honorable Conditions and that characterization was what the Command was recommending he be awarded.  As a function of the separation process, the Applicant was evaluated and screened by a Medical Officer for signs of PTSD and Traumatic Brain Injury (TBI).  He was found to not be exhibiting signs and symptoms of PTSD or TBI and that no referral to a mental health care provider for further evaluation was indicated.  After review by the Staff Judge Advocate, the Separation Authority determined that the evidence of record was sufficient in law and fact to support the proposed discharge action.  He reviewed the chain of command’s recommendations regarding characterization of service.  On 24 August 2009, the Separation Authority directed the Applicant be discharged with an Under Other Than Honorable Conditions characterization of service for Misconduct (Drug Abuse) pursuant to paragraph 6210.5 of the MARCORSEPMAN.

(Decisional Issues) ()  .  1) The Applicant contends his misconduct was an isolated incident in what was an otherwise outstanding military career that included previous honorable enlistments, his meritorious service in combat, and the awarding of the Good Conduct Medal and Purple Heart.  (2) The Applicant contends that his misconduct of record was the result of stress from depression and anxiety related to undiagnosed PTSD.  (3) The Applicant contends that he was not offered treatment services for his drug abuse while in service.

Propriety - The Applicant was found guilty of violating Article 112(a) (Wrongful use, possession, etc of a controlled substance) at Battalion-level nonjudicial punishment.  During the NJP proceedings, the Applicant admitted to his illegal use.  By service policy, confirmed illegal drug use (to include steroids) mandates processing for administrative separation.  The Applicant’s service record reflects that he was advised properly on the separation recommendation by his chain of command; he was afforded the opportunity to exercise his rights and acknowledged all such in writing, to include waiving his right to present his case for retention to an administrative board of members.  The Separation Authority reviewed the evidence of record and determined that it satisfied the requirements as outlined in the applicable regulation; accordingly, he directed the Applicant be discharged.  He directed that the Applicant be assigned a corresponding reentry code of RE-4B (not recommended for reenlistment - in-service drug abuse).  The NDRB determined that the evidence of record did establish and meet the required elements of the specified basis for discharge (Misconduct - Drug Abuse) and that the Separation Authority actions were proper.  Accordingly, relief based on matters of propriety is not warranted.

Equity Issue 1 - The Applicant contends his misconduct was an isolated incident in what was an otherwise outstanding military career that included previous honorable enlistments, his meritorious service in combat, and the awarding of the Good Conduct Medal and Purple Heart.  The Applicant completed his first two enlistment periods with Honorable characterizations of his service; for those periods he received Honorable discharges.  However, each period of enlistment is an independent obligation and characterization of service is determined for each obligated period of service, independently.  Furthermore, despite a service member’s prior record of service, certain serious offenses, though isolated, warrant separation from the Naval Service in order to maintain good order and discipline.  Violation of Article 112(a) is one such offense requiring mandatory processing for administrative separation, regardless of grade, performance, service record, combat service, or time in service.  Moreover, this action usually results in an unfavorable characterization of service at discharge or, at a maximum, a punitive discharge with the possibility of confinement for up to 5 years, if adjudicated and awarded as part of a sentence by a special or general court-martial.  The Applicant’s command did not opt to pursue a punitive discharge; instead, they chose the more lenient, nonpunitive administrative discharge process following an administrative nonjudicial punishment.  Based on the seriousness of the offense, coupled with the nature of misconduct by a noncommissioned officer, the chain of command recommended separation with an Under Other Than Honorable Conditions characterization of service at discharge.  The NDRB determined this issue to be without merit; the discharge as awarded was consistent with service policy and other discharges.  Relief denied.

Equity Issue 2 - The Applicant contends that his misconduct of record was the result of stress from depression and anxiety related to undiagnosed PTSD, and, as such, warrants consideration as an extenuating and mitigating factor to his discharge and the characterization of service received.  The NDRB requested and received the Applicant’s service medical record and VA medical treatment records.  Post military service, the Applicant was diagnosed by appropriately credentialed mental health care providers with PTSD, directly related to his combat service in Iraq and compounded by his service in Afghanistan; this conditions was determined severe enough to warrant inpatient detoxification and inpatient treatment with high risk suicide factors.  After an in-depth review of the Applicant’s service record and his in-service and post-service medical records, the NDRB determined that the contention of PTSD - existing in-service - prior to the misconducts of record, was established.  Given the Applicant’s combat deployment history, his in-service mental health issues, the diagnosed PTSD (chronic/severe), and the unique issues associated with the Applicant’s discharge action, the NDRB determined that the Applicant’s PTSD and associated symptoms were mitigating and contributory factors in his misconduct and that some form of relief is warranted.

Equity Issue 3 - The Applicant contends that he was not offered treatment services for his drug abuse while in service.  The NDRB reviewed the Applicant’s service record, discharge package, and the service medical record.  The discharge proceedings did not document the screening and offer of treatment prior to separation.  Likewise, the separation process did not document a determination that special considerations in this case warranted waiving this requirement with follow-up screening and treatment being provided by the Department of Veterans Affairs (VA).   Lacking any evidence to refute the Applicant’s contention, the NDRB concurred with the Applicant’s contention that he was not afforded treatment.  However, this does not change the resultant outcome of his illegal use of steroids while in service or his admitted use of marijuana while in service to manage his PTSD symptoms.  An administrative error occurred; however, the propriety and equity of the discharge, as issued, remains consistent with service standards of discipline and the requirement to maintain the good order and discipline of the service.  Since discharge, the Applicant has received counseling and extensive inpatient treatment to address this concern through the VA.  As such, the NDRB determined that no change is warranted based on this issue.

When the quality of a member’s service has met the standards of acceptable conduct and performance of duty for military personnel, it is appropriate to characterize that service under Honorable conditions.  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.  However, an Under Other Than Honorable Conditions discharge 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’s record clearly documents his acceptable conduct while deployed in a combat zone; for this service, he received numerous awards and accolades and warranted the awarding of an Honorable discharge at the completion of his first two enlistments.  However, the record of service does not document service so meritorious that it would completely overcome the Applicant’s disregard for good order and discipline and use of illegal drugs during his third enlistment period - which constituted acts or omissions that were a significant departure from the conduct expected of service members.  Given the facts of the medical and service records, the information provided by the Applicant, and the Applicant’s combat service, the NDRB determined that the Applicant’s conduct, which forms the primary basis for determining the character of his service, was honest and faithful, but significant negative aspects of the member’s conduct still did outweigh the overall positive aspects of his record.  As such, given the facts and circumstances unique to this case, the NDRB determined that relief was warranted based on equitable grounds.  The NDRB voted 5-0 to upgrade the characterization of service at discharge to General (Under Honorable Conditions), but, by a vote of 5-0, that no change to the narrative reason for separation is warranted.  Relief granted.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service,  record entries, post service documentation, and discharge process, the NDRB found   Therefore, the awarded characterization of service shall  ; however, 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.

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.

C.  U.S. Code, Title 10, Section 1553 (d)

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), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 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