ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20120619
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)	20060128 - 20060212  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  20060213	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20100319	Highest Rank:  
Length of Service:    Year(s)    Month(s)  07  Day(s)
Education Level:  	AFQT:  36
MOS:  3381
Proficiency/Conduct Marks (# of occasions):  / 	Fitness Reports:  

Awards and Decorations (per DD 214):	Rifle     (3)    

Periods of UA/CONF:  

NJP:  
- 20100122:	Article  (Failure to obey order or regulation, to wit: MCO 12792.9 Marine Corps policy on illegal drugs) 
	Article  (Wrongful use, possession, etc., of controlled substance, marijuana) 
	Awarded:     Suspended:   

SCM:  	SPCM:  	CC:  

Retention Warning Counseling:  
- 20060825:	For violation of Article 107, in that PFC C_, did, on or about 20060816, with intent to deceive, signed an official statement, to wit: “I did not take part in the trashing of the room 326,” which was totally false, and was then known by PFC C_ to be so false.  Violation of Article 109, in that PFC C_, did at MCD, Fort Lee, VA, on or about 20060811, willfully and wrongfully damage the property of Pvt Z_ and PFC T_.

- 20100202:	For your NJP on 20100122 for Article 92, Failure to obey a lawful general order, and Article 112a, Wrongful use of a controlled substance. 

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.  Paragraph 6419, SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 1 September 2001 until Present.

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part IV, Para 403m(7)(b), Presumption Concerning Court-Martial Specifications.

C.  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 wants his discharge upgraded so he can use educational benefits.
2.	The Applicant contends his discharge was based on an isolated incident in 3 ½ years of good service.  He contends that Post-Traumatic Stress Disorder (PTSD) and news of the bad health of a family member led to self-destructive behavior of abusing alcohol, prescription medications, and illegal drugs.

Decision

Date:  20121212		Location: Washington D.C.	 Representation: 

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

Discussion

As a result of the Applicant’s claim of PTSD, 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 reflects two deployments in support of Operation Iraqi Freedom.

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 Applicant’s record of service included  6105 counseling warnings and one non-judicial punishment (NJP) for violations of the Uniform Code of Military Justice (UCMJ): Article 92 (Failure to obey order or regulation, 1 specification) and Article 112a (Wrongful use, possession, etc. of controlled substance: marijuana).  The Applicant also had a pre-service drug waiver for using marijuana 15 times prior to entering the Marine Corps, and acknowledged  complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 27 January 2006.  The Applicant was administratively separated in lieu of facing trial by court-martial.  His service record did not contain any information to determine the charges against him for which he was facing court-martial.  However, he was separated in lieu of trial by court-martial.  Per regulations, to attain approval for a SILT request, servicemembers must have been afforded the opportunity to consult with a qualified counsel and submit a written statement.  They must also fully understand the elements of the offense(s) for which they were charged, and they must admit their guilt.  They further certify a complete understanding of the negative consequences of their actions and that characterization of service could be Under Other Than Honorable Conditions, which might deprive them of virtually all veterans benefits based upon their current enlistment.  Based on the offense committed by the Applicant and approval of his request for separation in lieu of trial by court-martial, his command administratively processed him for separation. 

:  (Non-decisional) The Applicant wants his discharge upgraded so he can receive veterans educational benefits.  There is no requirement, or law, that grants re-characterization solely on the issue of facilitating access to benefits offered by the U.S. Department of Veterans Affairs (VA).  The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing educational opportunities.  Therefore, this issue does not serve to provide a foundation upon which the NDRB can grant relief.  Regulations limit the NDRB’s review solely to a determination of the propriety and the equity of a discharge.  

:  (Decisional) ()  .  The Applicant contends his discharge was based on an isolated incident in 3 ½ years of good service.  He contends that PTSD and news of the bad health of a family member led to self-destructive behavior of abusing alcohol, prescription medications, and illegal drugs.  Despite a servicemember’s prior record of service, certain serious offenses warrant separation from the Marine Corps to maintain proper order and discipline.  Violation of Article 112a is one such offense requiring mandatory processing for administrative separation regardless of grade, performance, or time in service.  This usually results in an unfavorable characterization of discharge or, at a maximum, a punitive discharge and possible confinement if adjudicated and awarded as part of a sentence by a special or general court-martial.  At NJP proceedings, the Applicant was found guilty of violation of Article 112a.  In addition, the Applicant also had 

charges pending against him for which he requested to be separated from the Marine Corps instead of face trial by court-martial.  His request to be separated was approved, and he was administratively discharged Under Other Than Honorable Conditions.  

The Applicant submitted documentation from April 2012 from a civilian neuropsychiatric center in Morehead City, NC that assessed the Applicant as suffering from PTSD, cannabis abuse, and alcohol dependence.  The NDRB could find no in-service diagnosis of PTSD.  After a complete review of the Applicant’s service records, his deployments in support of Operation Iraqi Freedom, and his post-service visit to a neuropsychiatric center, the NDRB determined PTSD and news of the bad health of a family member did not mitigate his misconduct.  There is nothing in the records or in any of the documentation provided by the Applicant that indicates the Applicant was not responsible for his actions or should not be held accountable for his misconduct.  The NDRB determined his misconduct was willful, that separation from the Marine Corps was warranted, and that his characterization Under Other Than Honorable Conditions was equitable.  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