ex-, USMC       

Current Discharge and Applicant’s Request

Application Received:  20120124
Characterization of Service Received:  
Narrative Reason for Discharge:  
Authority for Discharge:  MARCORSEPMAN 

Applicant’s Request:	Characterization change to: 
	Narrative Reason change to: MEDICAL/PSYCHOLOGICAL COMBAT DUTY

Summary of Service

Prior Service:
Inactive:	USMCR (DEP)	20060216 - 20060828  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  20060829	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20100820	Highest Rank:  
Length of Service:    Year(s)    Month(s)  22  Day(s)
Education Level:  	AFQT:  55
MOS:  0311
Proficiency/Conduct Marks (# of occasions):   (8)/  (8)	Fitness Reports:  

Awards and Decorations (per DD 214):	Rifle    (w/1 Bronze Service Star)    CoC

NJP:  

- 20090710:	Article  (Absence without leave, failing to go or leaving place of duty, 20090417) 
	Article  (Failure to obey order or regulation, operated a motorcycle before attending base motorcycle
		         riders course, 20090417)
	Awarded:  (to E-2)     Suspended:   (suspend 6 months)

- 20100406:	Article  (Drunken driving, BAC .09, MCB Camp Lejeune, NC, 20100318)
	Awarded:  (to E-1)     Suspended:   (suspend 6 months)

SCM:  

- 20100524:	Article  (Wrongful use, possession, etc., of controlled substance, Marijuana, 177 ng/ml, 20100216)
	Sentence:  (30 days credit for 60 days pre-trial CONF resulting in 0 days of CONF)
		        RIR (to E-1) FOP

SPCM:  	CC:  

Retention Warning Counseling:  

- 20100525:	For illegal drug use. 

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 misconduct is mitigated by Post-Traumatic Stress Disorder (PTSD) resulting from his tour in Iraq.

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 his misconduct is mitigated by PTSD from his tour in Iraq.  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.  A review of the Applicant’s records shows that he deployed to Iraq in support of Operation Iraqi Freedom from March - November 2008.

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 included  6105 counseling retention warning and   for  of the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave, departed appointed place of duty without authorization and proceeded to a wedding ceremony while in a UA status, 17 April 2009), Article 92 (Failure to obey an order or regulation, operated a motorcycle before attending motorcycle rider course and registering motorcycle on base), and Article 111 (Drunken driving, onboard MCB Camp Lejeune, BAC .09, 18 March 2010).  The record also reflected   for  of the UCMJ: Article  (Wrongful use, possession, etc of a controlled substance, marijuana o/o between 6-16 February 2010, THC 177 ng/ml as evidenced by NAVDRUGLAB msg).  Prior to entering the Marine Corps, the Applicant acknowledged his complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 27 January 2006.  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 10 June 2010, the Applicant exercised his right to consult with a qualified counsel, but  his rights to submit a written statement and request an administrative separation board.  On 11 August 2010, the Separation Authority, after careful review of the facts and circumstances surrounding the Applicant’s misconduct and overall record of service, 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 from the Marine Corps on 20 August 2010 as directed.

:  (Decisional) ()  .  The NDRB 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 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 found no medical diagnosis in the service or medical records to support the Applicant’s claim of PTSD.  The Board noted a 15 September 2008 Post-Deployment Health Assessment (PDHA) in which the Applicant responded to direct questions relating to his overall physical and mental health, summarized as follows: Your health is generally, Good; My health is, About the same now as before I deployed; How difficult have emotional problems made it for you to do your work, take care of things at home, or get along with other people, Not difficult at all; Were you placed on quarters, or given light duty, or are you still bothered by any of the following symptoms (problems sleeping, trouble concentrating, trouble remembering things, increased irritability, other), No; During this deployment did you experience any of the following events (blast or explosion, vehicular accident, fragment or bullet wound, fall, other event), No; Did you encounter dead bodies or see people killed or wounded during this 

deployment, No; Were you engaged in direct combat where you discharged your weapon, No; During this deployment did you ever feel you were in great danger of being killed, No; Have you ever had any experience that was so frightening, horrible, or upsetting that in the past month (you had nightmares about it or thought about it when you did not want to, tried hard not to think about it or went out of your way to avoid situations that remind you of it, were constantly on guard, watchful or easily startled, felt numb or detached from your surroundings), No; Did you enter or closely inspect any destroyed military vehicles, No; Would you like to schedule a visit with a healthcare provider to further discuss your health concerns, No; Are you currently interested in receiving information or assistance for a stress, emotional or alcohol concern, No; Are you currently interested in receiving assistance for a family or relationship concern, No; Would you like to schedule a visit with a Chaplain or a community support counselor, No.  

On 23 Sep 2008, the Applicant received a PDHA follow-up in which he denied any mental or physical health problems related to his recent deployment to Iraq.  The medical department annotated “SNM refuses to consult with Combat Stress Clinic for anger management” in the remarks section.  The medical record also included documentation from a 3 Nov 2008 visit to the Battalion Aid Station (BAS) that noted that the Applicant’s BAS visit was for follow-up due to anger, depression, low back pain, and headaches.  The examination report stated “Pt denied symptoms of depression, problems with anger or recent headache.  Pt continues to report chronic low back pain…  Pt refuses anger management and MH consult.”  Several months later, on 4 Mar 2009, the Applicant received another PDHA that reflected the following statement: “Member declines mental health services at this time.”

The Applicant was involved in a high-speed motorcycle accident on 17 April 2009 (while in a UA status) that resulted in injuries to his ankle, knee, back, and head and five days hospitalization.  On 7 September 2009, he was referred to a civilian psychologist (Carolina Psychological Health Services) for psychological evaluation due to a closed head injury he received during the motorcycle accident.  Upon completion of the extensive mental health exam, the evaluation report stated “…(the Applicant) indicated that he was not exposed to traumatic events during his tour (in Iraq).  However, he explained ‘I lost a friend while in Iraq.  I was at a different ECP.  I did not witness it but I had known him since I joined the Marine Corps.’  All of the symptoms related to PTSD were reviewed with (the Applicant) and he denied all PTSD symptoms.  He also denied depressive symptoms.”  The Applicant was diagnosed as follows:  AXIS I: Cognitive Disorder NOS, Adjustment Disorder w/ Mixed Disturbance of Emotions & Conduct; AXIS II: Rule Out Personality Disorder NOS (Anti-Social Features).  

On 16 February 2010, the Applicant participated in a command urinalysis and tested positive for marijuana use (test report received 2 Mar 2010).  One month later, on 18 Mar 2010, the Applicant was arrested aboard MCB Camp Lejeune for driving under the influence.  Prior to mandatory administrative separation processing (per the MARCORSEPMAN), the Applicant was screened for PTSD and Traumatic Brain Injury (TBI) in accordance with recent policy changes related to service members with documented service in hostile fire areas.  On 7 April 2010, the Regimental Medical Officer forwarded a memorandum to the Applicant’s Command, stating, “I have reviewed the medical records of the SNM for evidence of PTSD and TBI.  SNM is pending processing for involuntary administrative separation from the United States Marine Corps.  SNM deployed in support of OIF.  His PDHA and PDHRA were reviewed.  SNM has been appropriately screened and evaluated and has not been diagnosed with PTSD or TBI.”

After completion of Summary Court-Martial proceedings for violation of UCMJ Article 112a, the Applicant was notified of administrative separation processing for misconduct (drug abuse) on 10 June 2010.  The Applicant elected to exercise his right to consult with a qualified counsel, but  his rights to submit a written statement (in rebuttal of the proposed separation or to present matters of mitigation for consideration by the Separation Authority) and request an administrative separation board.  The Applicant’s Regimental Commanding Officer endorsed the administrative separation documentation on 21 July 2010, stating. “… (The Applicant) has not been diagnosed with PTSD or TBI.  I personally interviewed (the Applicant) and can state without a doubt that he is devoid of remorse for his constant use of drugs.  (The Applicant) freely admitted that in addition to the several dozen times he used marijuana and mushrooms in high school, he has smoked marijuana some 20 times while on active duty.  He has forfeited his combat deployment and his GI Bill by his complete and willful disregard for our no drug policy.  He accepts no responsibility for his actions and feels no remorse for them.  He simply likes to use drugs and feels that he is entitled to do so while being paid to be a United States Marine.  I have seen few cases of such willful disobedience.”  On 11 August 2010, the Separation Authority, after careful review of the facts and circumstances surrounding the Applicant’s misconduct, his overall record of service, and recommendations made by the chain of command directed that the Applicant be separated from the Marine Corps with an Under Other Than Honorable Conditions discharge due to Misconduct (Drug Abuse).  

While the Applicant contends that the symptoms or effects of PTSD were the underlying cause of his misconduct, the record clearly reflects his misconduct to be willful and demonstrated he was unfit for further service.  The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions.  Per the MARCORSEPMAN, when a  service has been honest and faithful, it is appropriate to characterize that service under Honorable conditions.  An Under Other Than Honorable Conditions discharge is warranted when a Marine commits or omits an act that constitutes a significant departure from the conduct expected from a member of the Naval Service.  The Applicant’s conduct, which forms the primary basis for determining the character of service, reflects the Applicant’s willful failure to meet the requirements of conduct expected of all Marines, regardless of his grade or length of service, and falls short of what is required for an upgrade in the characterization of service.  After careful analysis and deliberation on the facts and circumstances surrounding the Applicant’s discharge, the NDRB found the Applicant’s 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 process, the Board found   Therefore, the awarded characterization of service shall   and 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.

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