ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20120605
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)	20040429 - 20041011  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  20041012	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20051123	Highest Rank:  
Length of Service:    Year    Month  12  Days
Education Level:  	AFQT:  55
MOS:  9900
Proficiency/Conduct Marks (# of occasions):   () /  ()	Fitness Reports:  

Awards and Decorations (per DD 214):	Rifle  

Periods of UA/CONF:  

NJP:  

- 20050427:	Article  (Absence without leave, 20050327 - 20050425, 28 days)
	Awarded:     Suspended:  

- 20051003: 	Article  (Absence without leave, 20050429 - 20050929, 153 days)
	Article  (Wrongful use, possession, etc. of controlled substances, 2 specifications)
	Specification 1: Wrongfully used amphetamines 1558 ng/ml
	Specification 2: Wrongfully used methamphetamines 6962 ng/ml
	Awarded:    Suspended:  

SCM:  	SPCM:  	CC:  	Retention Warning Counseling:  

Administrative Corrections to the Applicant’s DD 214

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

	  “(28) 050327-050424, (153) 050429-050928”

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.	The Applicant contends his misconduct was mitigated by his mental condition and immaturity.
2.	The Applicant contends his misconduct is mitigated by a negligent squad leader, a less-than-thorough military counselor, and an inadequate review of his case.	
3.	The Applicant contends his post-service conduct warrants consideration for an upgrade.

Decision
         
Date:  20130314		Location: Washington D.C.	 Representation: 

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

Discussion

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 did complete a thorough review of the circumstances that led to  discharge and the discharge process to ensure  discharge met the pertinent standards of equity and propriety.  The Applicant’s record of service included   for  of the Uniform Code of Military Justice (UCMJ): Article  (Absence without leave, : 20050327-20050425, 28 days, and 20050429-20050929, 153 days) and Article  (Wrongful use, possession, etc. of controlled substances, : Wrongfully used amphetamines 1558 ng/ml and Wrongfully used methamphetamines 6962 ng/ml).  The Applicant  a pre-service drug waiver for using marijuana  prior to entering the Marine Corps.  Based on the Article 112a violation, processing for administrative separation is mandatory.  When notified of administrative separation processing using the  procedure, the Applicant   rights to consult with a qualified counsel, submit a written statement, and request an administrative board.

:  (Decisional) ()  .  The Applicant contends his misconduct was mitigated by his mental condition and immaturity.  When reviewing a discharge, the NDRB does consider the extent to which a medical problem might affect an Applicant’s performance and ability to conform to the military’s standards of conduct and discipline.  However, the NDRB generally does not consider the circumstances surrounding the Applicant’s stated condition or diagnosis to be of sufficient nature to excuse the Applicant’s misconduct.  The records indicate the Applicant was administratively separated Under Other Than Honorable Conditions for Misconduct (Drug Abuse).  The Applicant provided credible evidence of being diagnosed with major depression, anxiety disorder, obsessive-compulsive disorder, and polysubstance dependency (Axis I) by a civilian medical doctor and a board-certified psychiatrist on 17 August 2005 and 26 September 2005, respectfully, while in an unauthorized absence status.  The documentation provided by the Applicant to the NDRB shows the Applicant willfully went UA, sought medical evaluation to prove he was unfit to serve in the Marine Corps, and retained counsel to aid in his early release from the service.  Upon his return to the Marine Corps from UA status, the Applicant referred himself to medical at the Camp Geiger Clinic, and on 30 September 2005, he was diagnosed by a qualified medical officer with major depression and adjustment disorder (Axis I).

Department of Defense regulations provide that disciplinary separations supersede disability separations.  Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons.  In the Applicant’s one year and one month of service, he was in a UA status for 6 months.  The records also reflect the Applicant violated the Marine Corps drug policy twice by the wrongful use of amphetamines (1558 ng/ml) and methamphetamines (6962 ng/ml) as evidenced by positive urinalysis tests.  Violation of Article 112a is one such offense requiring mandatory processing for administrative separation regardless of grade, performance, or time in service.  After a thorough review of the Applicant’s service and medical records and substantial documentation provided by the Applicant, the NDRB determined his mental condition did not mitigate his extensive and repetitive misconduct.  In fact, the medical documentation that talks extensively about his pre-service mental 

treatment and struggles was grounds for a discharge due to Fraudulent Enlistment.  There is nothing in the records to indicate that he was not responsible for his actions or should not be held accountable for his misconduct.  While the Applicant may feel his youth and immaturity were contributing causes of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service.  The NDRB recognizes that many of our servicemembers are young at the time they enlist for service, however, most still manage to serve honorably.  While some members may be less mature than others, the NDRB does not view a member’s claim of immaturity to be a mitigating factor or a sufficient reason for misconduct.  Relief denied.

Issue 2:  (Decisional) (Propriety/Equity)  RELIEF NOT WARRANTED.  The Applicant contends his misconduct is mitigated by a negligent squad leader, a less-than-thorough military counselor, and an inadequate review of his case.  The NDRB conducted a thorough review of the Applicant’s service and medical records and the documentation provided with his DD Form 293 and found no impropriety in the actions of his squad leader or military counselor.  The Applicant was responsible for his actions and chose to go into extended UA periods and chose to use illegal drugs.  If service in the Marine Corps was unbearable, it undoubtedly had to do with the fact that he neglected to reveal his extensive pre-service mental health problems and treatment during the recruiting process and should never have been allowed to enlist in the Marine Corps.  A thorough review of his case, however, does reveal unusual treatment of the Applicant.  Periods of extended UA and multiple uses of illegal drugs typically would result in charges being referred to a Special Court-Martial that likely would have resulted in a punitive Bad Conduct Discharge, confinement, and reduction in rank to E-1.  His command, however, chose to treat the Applicant leniently and only processed him for administrative separation.  The NDRB determined his discharge was warranted, proper, and very equitable.  Relief denied.

Issue 3:  (Decisional) (Equity)  RELIEF NOT WARRANTED.  The Applicant contends his post-service conduct warrants consideration for an upgrade.  The Applicant contends his post-service conduct warrants consideration for an upgrade to General.  The NDRB considers 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.  The Applicant provided a personal statement, evidence of college attendance, a resume, and college transcripts.  The Applicant could have provided documentation as detailed in the Post-Service Conduct paragraph in the Addendum, however, completion of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case by case basis to determine if post-service conduct establishes that the in-service misconduct was an aberration.  The Board determined that the documentation submitted by the Applicant does not demonstrate if in-service misconduct was an aberration.  The characterization of service received was appropriate considering the length of service and UCMJ violations.  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 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