ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20111025
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)	20020927 - 20021229  	Active:		20021230 - 20061110  

Period of Service Under Review:
Date of Current Enlistment:  20061111	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20071220	Highest Rank:  
Length of Service:    Year(s)    Month(s)  10  Day(s)
Education Level:  	AFQT:  32
MOS:  3381
Proficiency/Conduct Marks (# of occasions):   () /  ()	Fitness Reports:  

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

Periods of UA/CONF:  

NJP:  	SCM:  	SPCM:  	CC:  	Retention Warning Counseling:  

NDRB Documentary Review Conducted (date):	20091001
NDRB Documentary Review Docket Number:	MD09-01093
NDRB Documentary Review Findings:		Proper as issued and that no change is warranted.

Administrative Corrections to the Applicant’s DD 214

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

	  “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 20021230 UNTIL 20061110”

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 inequitable based on his record of service and the evidence used during the administrative separation process.
2.	Applicant contends his discharge merits equitable relief based on the effects of (post-service diagnosed) Post-Traumatic Stress Disorder (PTSD).

Decision

Date:  20120612			
Location: Washington D.C.		Representation: 

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

Discussion

As a result of the Applicant’s claim of PTSD, 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 Applicant’s service record documents completion of a deployment in the Al-Anbar Province of Iraq, from February to June 2005, in support of Operation IRAQI FREEDOM.

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 his discharge and the discharge process to ensure his discharge met the pertinent standards of equity and propriety.  The Applicant’s record of service for the current enlistment did not contain any 6105 counseling retention warnings, commanding officer nonjudicial punishment, or trial by courts-martial.  The record did reveal that the Applicant tested positive on a urinalysis for marijuana use (THC, 277 ng/ml, as evidenced by NAVDRUGLAB msg 25 June 2007), which is a violation of Uniform Code of Military Justice Article 112a (Wrongful use, possession, etc of a controlled substance).  The Applicant had received an enlistment waiver for pre-service illegal use of marijuana (on several occasions) prior to entering the Marine Corps.  He acknowledged his complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 26 September 2002.  Additional documentation revealed that the Applicant was arrested by civil authorities in November 2007 for a civil offense related to brandishing or displaying a personal firearm.  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 4 October 2007, the Applicant exercised his rights to consult with a qualified counsel and request an administrative separation board.  The Administrative Separation Board was conducted on 11 October 2007 and reported the following findings and recommendations to the Convening Authority: (By 3-0 vote) via preponderance of the evidence, the Applicant committed the misconduct for which he was charged; (By 3-0 vote) the Applicant should be administratively separated from the Marine Corps; (By 3-0 vote) the Applicant should receive an Under Other Than Honorable Conditions characterization of service; (By 2-1 vote) the Applicant’s administrative separation should be suspended for 12 months.  On 7 December 2007, after considering the facts and circumstances unique to the Applicant’s case, the Separation Authority directed that the Applicant be separated from the Marine Corps with an Under Other Than Honorable Conditions discharge due to Misconduct (Drug Abuse).  The Applicant was discharged as directed on 20 December 2007.

:  (Decisional) ()  .  The Applicant contends his discharge was inequitable based on his overall record of service and the supporting evidence used during the administrative separation process.  The NDRB conducted 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 Board noted that the Applicant completed a previous four year enlistment in the Marine Corps (on 10 November 2006) and received an Honorable discharge before immediately reenlisting on 11 November.  During the current enlistment, the Applicant received no 6105 counseling retention warnings, commanding officer NJP, or trial by courts-martial.  Moreover, his Proficiency and Conduct evaluation average was 4.3 and 4.1, respectively.  The Applicant provided additional documentary evidence and extensive testimony at the personal hearing regarding the circumstances that led to his administrative separation.  After thorough analysis and careful consideration of the available evidence, the NDRB found that the Applicant’s issue merited partial relief based on equitable grounds.  Accordingly, the NDRB determined that the Applicant’s characterization of service shall change to General (Under Honorable Conditions).  Partial relief warranted.  Full relief to Honorable was not granted, because the Applicant did have misconduct in his current enlistment.

:  (Decisional) ()  .  The Applicant contends his discharge merits equitable relief based on the effects of (post-service diagnosed) PTSD.  The government enjoys a presumption of regularity in the conduct of its affairs.  The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue.  The NDRB reviewed the Applicant’s records and was unable to find any reference to a medical diagnosis of PTSD in the Applicant’s service or medical records to support his claim; however, the Applicant did provide post-service documentation from a Department of Veteran Affairs (VA) decision letter in which he was awarded VA compensation due to post-service diagnosed PTSD.  Although the Applicant was diagnosed with PTSD after his discharge, the NDRB determined that PTSD was not a mitigating factor in the circumstances that led to his discharge, and therefore, this issue did not provide a basis for which relief could be granted.  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 discharge process, the Board found the discharge was proper but not equitable.  Therefore, the Board determined that the awarded characterization of service shall  GENERAL (UNDER HONORABLE CONDITIONS but the narrative reason for separation shall remain .  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