ex-, USMC         

Current Discharge and Applicant’s Request

Application Received:  20111221
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)	20050505 - 20050523  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  20050524	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20080821	Highest Rank:  
Length of Service:    Year(s)    Month(s)  28  Day(s)
Education Level:  	AFQT:  38
MOS:  3381
Proficiency/Conduct Marks (# of occasions):   () /  ()	Fitness Reports:  

Awards and Decorations (per DD 214):	Rifle     MM 

Periods of UA/CONF:  CONF 20080519 - 20080821 (95 days)

NJP:  

- 20061113:	Article  (Failure to obey orders and regulations by using illegal drugs, Oxymorphone, o/o 200609)
	Article  (Wrongful use of a controlled substance, Oxymorphone 218 ng/ml, o/o 200609)
	Awarded:  (to E-2)     Suspended:  

SCM:  	CC:  	Retention Warning Counseling:  

SPCM:  

- 20080519:	Article  (Drugs), 5 specifications 
	[Date and details extracted from Senior Defense Counsel’s letter dated 20080702]
	Sentence: NFIR

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

1.	Applicant contends the effects from Post-Traumatic Stress Disorder (PTSD) and Traumatic Brain Injury (TBI) mitigate the misconduct for which he was separated.
2.	Applicant contends command impropriety and inequity in his administrative separation from the Marine Corps.

Decision

Date:  20120625		Location: Washington D.C.	 Representation: 

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

Discussion

The Applicant contends the effects from PTSD and TBI mitigate the misconduct for which he was separated.  A review of the Applicant’s record shows that he deployed to Iraq in support of Operation Iraqi Freedom.  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 his discharge and the discharge process to ensure his discharge met the pertinent standards of equity and propriety.  The Applicant’s record of service did reflect   for  of the Uniform Code of Military Justice (UCMJ): Article  (Failure to obey an order or regulation, by illegally using oxymorphone) and Article  (Wrongful use, possession, etc of a controlled substance, oxymorphone, 218 ng/ml).  The record also reflected   for  of the UCMJ: Article  (Wrongful use, possession, etc of a controlled substance, 5 specifications (extracted from Senior Defense Counsel Ltr of 2 Jul 2008): marijuana 46 ng/ml, NAVDRUGLAB msg 15 Aug 2007; marijuana 193 ng/ml, NAVDRUGLAB msg 11 Oct 2007; marijuana 1225 ng/ml, NAVDRUGLAB msg 2 Nov 2007; marijuana 88 ng/ml, NAVDRUGLAB msg 7 Apr 2008; and fifth specification not found in record).  The record also revealed that the Applicant had two enlistment waivers (for illegally using marijuana 4-5 times and an arrest for illegal possession of marijuana) prior to entering the Marine Corps,  that he acknowledged his complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 4 May 2005 during enlistment accession processing.  Based on the Article 112a violation, processing for administrative separation is mandatory per the Marine Corps Separation and Retirement Manual.  The Applicant was initially notified of administrative separation processing on 23 Nov 2006 due to a positive drug test result (NAVDRUGLAB msg 27 Sep 2006) that indicated 218 ng/ml of oxymorphone.  The Applicant, after consultation with qualified counsel, requested an Administrative Separation Board (ASB) hearing.  On 1 Mar 2007, the Senior Member of the ASB forwarded the board’s findings and recommendation to the Applicant’s chain of command, as follows: “The Board determined, by majority vote, that the preponderance of the evidence proves all acts or omissions alleged in the notification.  By majority vote, the Board recommends retention in the Marine Corps.”  On 12 Mar 2007, the Applicant’s Commanding Officer (CO) endorsed the ASB findings and recommendation and forwarded to the Commanding General, Second Marine Aircraft Wing (CG, 2d MAW), stating, “The Board found that the preponderance of the evidence proved all acts or omissions alleged in the notification.  The administrative discharge board recommended retention in the Maine Corps.  I agree with the board’s findings, however, I disagree with the board’s recommendation that the respondent be retained in the Marine Corps.  It is requested that the case be forwarded to the Secretary of the Navy recommending separation with a General (Under Honorable Conditions) characterization of service.”  On 7 Jun 2007, the CG, 2d MAW sent a memorandum to the Applicant stating, “After careful consideration, this package will be held in abeyance until your End of Active Service.  During this period you shall conform to all standards of conduct and not violate the Uniform Code of Military Justice.  Any further misconduct may result in adverse administrative or disciplinary action, to include nonjudicial punishment, court-martial or forwarding this package to the Commandant of the Marine Corps for approval.”

On 12 Jun 2008, after four subsequent positive drug test results for marijuana use, the Applicant’s CO interviewed him regarding pending administrative separation processing.  In his post-interview memorandum to the Separation Authority, the Applicant’s CO stated, “In accordance with the reference, an interview was conducted with (the Applicant) on 12 Jun 2008 in reference to his drug abuse and the recommendation that he be administratively separated from the Marine Corps by reason of misconduct due to drug abuse.  During the interview, (the Applicant) was alert and fully able to understand the topics discussed.  His future in, and out, of the Marine Corps, as well as his consecutive positive urinalyses were the issues mentioned.  Additionally, his past history of misconduct, and why he is being processed for discharge were discussed.  (The Applicant’s) drug use makes him unfit for duty and his actions are contrary to good order and discipline.  After his initial use of oxymorphone, he was well aware that further use of illegal drugs could result in administrative discharge.  In addition to his past record of misconduct during his current contract, his action demonstrated that he cannot conform to required standards of conduct and discipline, and by this he has demonstrated no potential for rehabilitation or further service as a member of the Marine Corps.  Based on drug abuse, I am recommending (the Applicant) be administratively separated from the Marine Corps and that his service be characterized as other than honorable.”  The Applicant’s Sergeant Major also submitted a statement on 12 Jun 2008 that said, “(The Applicant) has been through extensive attempts to solve both his medical and behavioral problems.  After speaking with him on several occasions, I do not feel that he has the drive or desire to be rehabilitated enough to be an acceptable Marine.  Based on his drug abuse, I recommend (the Applicant) be administratively separated from the Marine Corps with an Other than Honorable characterization of service.”  The Applicant was re-notified of the intent to process him for administrative separation due to continued drug abuse.  When notified of administrative separation processing using the  procedure on 19 Jun 2008, the Applicant exercised his rights to consult with a qualified counsel and submit a written statement, but waived his right to request an Administrative Separation Board (as a result of his Special Court-Martial pretrial agreement with the Convening Authority).

On 2 Jul 2008, the Applicant’s Senior Defense Counsel (on behalf of the Applicant) submitted a request for a General discharge and included matters for consideration to the Commanding General, Second Marine Aircraft Wing.  In his request, the Defense Counsel stated, “At a Special Court-Martial on 19 May 2008, (the Applicant) pled guilty to five specifications of drug use.  He is currently serving his sentence at the Camp Lejeune Brig.  As part of his pretrial agreement, (the Applicant) agreed to waive his administrative separation board.  Instead, he is submitting matters to you for your further consideration.  Enclosed is a letter from Senator (X) requesting that he be given a discharge that would allow him to retain VA benefits.  Also enclosed is a statement from (the Applicant’s) former guardian, which explains many of his problems and makes a similar request.  On behalf of (the Applicant), I request that he be given a General (Under Honorable Conditions) discharge.  Allowing him to retain VA benefits helps (the Applicant) obtain the medications that he will need for the rest of his life.”  On 10 Jul 2008, the Commanding Officer, Marine Wing Support Group 27 endorsed the Applicant’s administrative separation package, stating, “On 2 Jul 2008, (the Applicant’s) defense counsel submitted matters to be considered which have been attached as enclosure (20).  These matters include letters from (Senator X) and (Ms Y - his former guardian).  I concur with the recommendation of his Commanding Officer that (the Applicant) be separated from the U.S. Marine Corps with an other than honorable characterization of service per paragraph 6210.5 of the reference regarding drug abuse.  I further recommend no suspension.”  On 1 Aug 2008, the CG, 2d MAW endorsed the Applicant’s administrative separation package, stating, “I hereby find the allegations in the notification of the basis for separation to be substantiated by a preponderance of the evidence” and further directed that the Applicant be separated from the Marine Corps with an Under Other Than Honorable Conditions discharge for Misconduct (Drug Abuse).  The Applicant was separated from the Marine Corps on 21 Aug 2008 as directed.

:  (Decisional) ()  .  The Applicant contends the effects from PTSD and TBI mitigate the misconduct for which he was separated.  The Applicant submitted significant documentary evidence to support his claim that pre-service and in-service incidents of head trauma, combined with an excessively applied “blood choke hold” procedure during Marine Corps Martial Arts Program training and the effects of PTSD led to out-of-character impulsive and irrational personal behavior resulting in the misconduct for which he was separated.  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.  After extensive examination of the Applicant’s record of service, medical records, and the significant documentary evidence submitted by the Applicant in support of his claim, the NDRB found that partial relief was warranted on the basis of equity.  Accordingly, the NDRB determined that the Applicant’s awarded characterization of service shall change to General (Under Honorable Conditions).  Partial relief warranted.  Full relief to Honorable was not granted as the NDRB determined that the Applicant was partly responsible for his misconduct and should be held accountable for that misconduct.

The U.S. Department of Veterans Affairs 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 Navy.  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 or http://www.ptsd.va.gov/public/pages/help-for-veterans-with-ptsd.asp and http://www.va.gov/healthbenefits/vhbh/.  Additionally, support is available by phone at: 1-877-222-VETS (8387).

:  (Decisional) ()  .  The Applicant contends command impropriety and inequity in his administrative separation from the Marine Corps.  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 Board conducted a detailed review of the Applicant’s records to determine whether his discharge met the pertinent standards for propriety and equity.  After detailed examination and careful consideration of all the available evidence, to include extensive documentation submitted by the Applicant, the NDRB could find no evidence to support his claim of command impropriety or inequity.  Accordingly, and in consideration of the relief given in Issue 1, the NDRB found that the Applicant’s discharge was proper, equitable, and in accordance with the applicable orders and directives in effect at the time of his separation.  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 process, the NDRB found the Applicant’s discharge was proper and equitable at the time of his discharge.  However, based on the significant documentary evidence submitted by the Applicant, the awarded characterization of service shall   but 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.

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