ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20120229
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)	20060915 - 20060917  	Active:		20060918 - 20091214  

Period of Service Under Review:
Date of Current Enlistment:  20091215	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20110526	Highest Rank:  
Length of Service:    Year(s)    Month(s)  12  Day(s)
Education Level:  	AFQT:  39
MOS:  0621
Fitness Reports:  

Awards and Decorations (per DD 214):	Rifle , , , , ACM (w/1 bronze service star), , , 

Periods of UA/CONF:  

NJP:  

- 20110125:	Article  (Wrongful use, possession, etc. of controlled substances, to wit: marijuana 54 ng/ml)
	Awarded:     Suspended:  

SCM:  	SPCM:  	CC:  

Civilian Arrest:  Spousal domestic abuse - charges pending in civilian court at time of drug use and discharge.  Adjudication of charges unknown.  

Retention Warning Counseling:  

- 20110125:	For my recent NJP held on 20110125 for Article 112a.

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 060918 UNTIL 091214”

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.

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.  The Applicant seeks an upgrade to facilitate access to Department of Veterans Affairs (VA) health benefits for Post-Traumatic Stress Disorder (PTSD) treatment and medical insurance assistance. 
2.  The Applicant contends his misconduct was an isolated incident in what was an otherwise outstanding military career.  

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 seeking VA assistance for PTSD directly related to his combat service in Afghanistan.  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 a combat deployments as a radio operator in the Helmand Province, Afghanistan (Nov 2009 - May 2010), conducting combat operations in support of Operation Enduring Freedom (OEF).  The military service record further documents that he was awarded the Afghanistan 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 21 with waivers to enlistment and induction standards for pre-service illegal drug use (marijuana), a previous discharge from the Delayed Entry Program due to drug use, and an arrest for Simple Assault.  The Applicant acknowledged his complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs - in writing - as a required function of his waiver process to enlistment on 09 September 2006.  The Applicant completed one enlistment period honorably and reenlisted for a second four-year enlistment contract while deployed in Afghanistan.  The highest rank achieved by the Applicant during his service was E-5/Sergeant.  The Applicant’s record of service includes one 6105 retention-counseling warning and a nonjudicial punishment for violation of the Uniform Code of Military Justice (UCMJ): Article 112(a) (Wrongful use, possession, etc., of a controlled substance - marijuana) as confirmed by Naval Drug Lab positive urine sample test result (54 ng/ml).  Based on the Article 112(a) violation, by service policy, processing for administrative separation is mandatory.  When notified of the administrative separation process using the board notification procedure, the Applicant elected to waive his rights to consult with a qualified counsel, to submit a written statement to the Separation Authority, or to request an administrative board hearing to present his case for retention or characterization of service.  As an OEF combat veteran, the Applicant was screened by medical professionals for signs or symptoms of PTSD - the Applicant was found to not show any signs or symptoms at the time of his separation. 
 
Issue 1: (Nondecisional Issue)  The Applicant seeks an upgrade to achieve eligibility for VA medical benefits and counseling.  There is no requirement, or law, that grants re-characterization solely on the issue of facilitating 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.  

The NDRB cannot grant a change based solely on this issue; however, the Applicant should be aware that the VA has announced special VA enrollment access for PTSD and mental health treatment to combat veterans discharged under other than dishonorable conditions (i.e., any characterization of service greater than a dishonorable discharge).  Effective Jan. 28, 2008, combat veterans discharged from active duty on or after Jan. 28, 2003 are eligible for combat veteran enhanced eligibility and enrollment placement into Priority Group 6 (unless eligible for higher enrollment Priority Group placement) for 5 years post discharge for PTSD treatment.  Additionally, the VA determines the eligibility for enrollment in its programs - independent of the Applicant’s characterization of service as determined by the Marine Corps.  The Applicant, as a combat veteran, is encouraged to contact his local VA affairs representative for more information and may request a review of service and determination of benefits from the VA.  Alternately, he may call 1-877-222-8387 or visit the following website for more information:  http://www4.va.gov/healtheligibility/Library/pubs/CombatVet/CombatVet.pdf.

Issue 2: (Decisional) ()  .  The Applicant contends his misconduct was an isolated incident in what was an otherwise outstanding military career.  The Applicant completed his first enlistment period honorably and immediately reenlisted.  The NDRB noted an administrative error on the Applicant’s DD Form 214 (Block 18, Remarks), which should state that the Applicant had a period of honorable service from 20060918 to 20091214, and will notify Headquarters Marine Corps to issue a change to the DD Form 214 to correct this error.  As such, the period of service under review regarding the Under Other Than Honorable Conditions characterization of service is from 15 December 2009 until discharge on 26 May 2011.  Despite a service member’s prior record of service, to include combat 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, 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, if adjudicated and awarded as part of a sentence by a special or general court-martial.  The Applicant’s command opted to pursue the nonjudicial punishment and administrative separation process vice the punitive discharge.  Based on the seriousness of the offense committed, coupled with the civilian arrest for domestic violence, the chain of command recommended administrative separation with an Under Other Than Honorable Conditions characterization of service at discharge.  The Separation Authority reviewed the evidence of record and the gravity of the charges and concurred.  The Separation Authority approved the command’s recommendation for separation and directed the Applicant to be discharged for Misconduct (Drug Abuse) pursuant to paragraph 6210.5 of the Marine Corps Separation and Retirement Manual.  Based on the Applicant’s record of service during the period under review, the NDRB determined that the Applicant had engaged in conduct involving one or more acts or omissions that constituted a significant departure from the conduct expected of members of the Naval Service and that the characterization of service received was warranted.

As the Applicant requested a review of his discharge in order to facilitate access to VA benefit programs for help with PTSD issues, the NDRB conducted a detailed review of the record to determine if PTSD was an extenuating or mitigating factor in the discharge action.  The NDRB requested all records of medical treatment, both active duty and post-service, from the VA.  The records received from the VA failed to document any request for evaluation, any diagnosis, or any findings of PTSD or other mental health concerns.  Furthermore, the Applicant did not provide any evidence of a diagnosis of PTSD from any other private mental health treatment provider.  The NDRB found no evidence in the record of any indications of, or diagnosis for, PTSD.  Additionally, there is no evidence in either the Applicant’s service record, or the documentation he provided, that demonstrated any problems or symptoms manifesting during his enlistment from his service in Afghanistan.  Furthermore, the Applicant’s record does not document any attempts to seek help for any combat stress-related symptoms while in service.  Lacking any evidence of PTSD, the NDRB is unable to establish this contention as a basis for mitigation or consideration as an extenuating circumstance.  Relief denied.

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   and 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