ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20120208
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)	20050125 - 20050206  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  20050207	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20080718	Highest Rank:  
Length of Service:    Year(s)    Month(s)  12  Day(s)
Education Level:  	AFQT:  32
MOS:  0331
Proficiency/Conduct Marks (# of occasions):   () /  ()	Fitness Reports:  

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

Periods of UA/CONF:  

NJP:  

- 20070129:	Article  (Failure to obey order or regulation - driving under the influence of alcohol)
	Awarded:     	Suspended:  

- 20070310:	Article  (Failure to obey order or regulation - breaking restriction)
	Awarded:     	Suspended:     15 days

- 20070929:	Article  (Wrongful use, possession, etc., of controlled substances, to wit: cocaine and MDMA)
	Awarded:     	Suspended:  

SCM:  	SPCM:  	CC:  	Retention Warning Counseling:  

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.

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

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

Applicant’s Issues

1.  (Nondecisional) The Applicant seeks an upgrade to facilitate greater access to Department of Veterans Affairs (VA) health benefits for his Post-Traumatic Stress Disorder (PTSD) and Traumatic Brain Injury (TBI).

2.  (Decisional issue) The Applicant contends that his misconduct of record was the result of his inability to properly deal with the depression and anxiety resulting from marital discord and undiagnosed PTSD.

Decision

Date:  20120510	        	Location: Washington D.C.	 Representation: 

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 and TBI directly related to his combat service in Iraq.  As such, in accordance with U.S. Code, Title 10, Section 1553 (d) (1), the NDRB 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 Applicant’s service record documents two combat deployments as an infantry machine gunner in Al-Anbar Province, Iraq, conducting direct combat operations in support of Operation IRAQI FREEDOM.  The military service record further documents that he was awarded the Iraq Campaign Medal for his efforts while deployed in a designated combat zone.

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 identified one decisional issue for the NDRB’s consideration related to the equity of the characterization of his service; additionally, the NDRB completed a thorough review of the circumstances that led to the Applicant’s discharge, and the discharge process, to ensure the discharge met the pertinent standards of both equity and propriety.

The Applicant’s enlistment record reflects entry into military service at age 19 with waivers to enlistment and induction standards for pre-service illegal drug use (marijuana) and a moral waiver for misconduct.  The Applicant acknowledged his complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs - in writing - on 21 January 2005 as a condition of his enlistment waiver process.  The Applicant enlisted on an Infantry Option contract and received training as a Machine Gunner.  The highest rank achieved by the Applicant during his enlistment was E-3/Lance Corporal.  The Applicant’s record of service includes one 6105 retention-counseling warning and three nonjudicial punishments for violations of the Uniform Code of Military Justice (UCMJ): Article 92 (Failure to obey lawful order or regulation, 2 specifications, Driving under the influence of alcohol and breaking restriction) and Article 112(a) (Wrongful use, possession, etc. of a controlled substance - MDMA and cocaine).  Based on the Article 112(a) violation, by acknowledged service policy, processing for administrative separation was mandatory.  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 the administrative separation process using the board notification procedure, the Applicant elected to waive his rights to consult with a qualified legal counsel, to present his case for retention to an administrative hearing board, or to provide written matters to the Separation Authority for his consideration.  The Applicant was advised, in writing, that the least favorable characterization of service he could receive was Under Other Than Honorable Conditions and that characterization was what the Commander was recommending.  The Separation Authority reviewed the chain of command’s recommendations and the evidence of record and concurred; the Applicant was discharged from the service for Misconduct (Drug Abuse) and received a correspondingly appropriate re-entry code of RE-4B (not recommended for reenlistment, in-service drug abuse).  

Issue 1: (Nondecisional)  The Applicant seeks an upgrade to facilitate greater access to VA health benefits for his PTSD and TBI.  The Applicant is currently receiving basic benefits for PTSD from the VA under the special VA enrollment eligibility program but is seeking greater levels of care than currently authorized with an Under Other Than Honorable Conditions characterization of service.  There is no requirement, or law, that grants re-characterization solely on the issue of facilitating access, or increased access, to VA benefits.  Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing educational opportunities or employment opportunities.  Regulations limit the NDRB’s review solely to a determination of the propriety and the equity of a discharge.  As such, this issue does not serve to provide a foundation upon which the NDRB can grant relief.
  
Issue 2: (Decisional) ()  .  The Applicant contends that his misconduct of record was the result of his inability to properly deal with the depression and anxiety resulting from marital discord and undiagnosed PTSD and TBI.  The Applicant was determined to have violated Article 112(a) (Wrongful use, possession, etc of a controlled substance) at nonjudicial punishment.  The basis for establishing that the Applicant had committed the offense was Naval Drug Lab Testing resulting from a command urinalysis test.  The Applicant’s urine sample tested positive for the illegal use of a controlled substance, MDMA and cocaine.  By service policy, confirmed illegal drug use mandated 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 concurred with the determination that a preponderance of the evidence substantiated the alleged misconduct (violation of Article 112a) and all requirements as outlined in the applicable regulation (MARCORSEPMAN - paragraph 6210.5 Misconduct - Drug Abuse) had been met; accordingly, he directed the Applicant be discharged.  The NDRB determined that the evidence of record did establish the basis for discharge and that the Separation Authority actions were proper.  Accordingly, relief based on propriety is not warranted.

The NDRB requested all records of medical treatment, both active duty and post-service, from the Department of Veterans Affairs for review in support of the Applicant’s contention; the detailed records of treatment and diagnosis were received and reviewed.  After an in-depth review of the Applicant’s documentation, his service and medical records, and discharge physical, the contention of PTSD and TBI was established as existing in-service prior to the misconduct of record.  Additionally, the VA has determined that PTSD was service-caused/service-aggravated for treatment purposes only, but that no disability was warranted due to the characterization of service at discharge.  After a careful review of the Applicant’s combat deployment history, in-service mental health issues, diagnosed PTSD, and the unique issues related to this discharge action, the NDRB determined the Applicant’s PTSD and associated symptoms were mitigating and contributory factors to his misconduct of record and that some form of relief was warranted.

Characterization of service at discharge is recognition of a Marine’s performance and conduct throughout a period of enlistment and is not necessarily dependent upon the narrative reason for separation.  When the quality of a member’s service has met the standards of accepted 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 characterization of service 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.  Given the facts of the record and the information provided by the Applicant, 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 that significant negative aspect of the member’s conduct did outweigh the overall positive aspects of his record.  Furthermore, the NDRB determined that mitigation for unique circumstance in the case was warranted and appropriate.  As such, given the facts and circumstances unique to this case, the NDRB determined partial relief based on equitable grounds is warranted.  The NDRB voted 5-0 to change the characterization of service at discharge to General (Under Honorable Conditions), but 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, and discharge process, the NDRB determined that    Therefore, the awarded characterization of service shall  , however, the narrative reason for separation shall remain MISCONDUCT.  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