ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20131107
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)	20070918 - 20071104  	Active:	

Pre-Service Drug Waiver:  

Period of Service Under Review:
Date of Current Enlistment:  20071105	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20100604	Highest Rank:  
Length of Service:    Year(s)    Month(s)  00  Day(s)
Education Level:  	AFQT:  41
MOS:  0311
Proficiency/Conduct Marks (# of occasions):   / 	Fitness Reports:  

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

Periods of UA/CONF:  

NJP:   

- 20080714:	Article  (Failure to obey order or regulation)
	Awarded:    Suspended:  

- 20100203:	Article  (Wrongful use, possession, etc. of controlled substances, to wit: marijuana 69 ng/mL)
	Awarded:     Suspended:  

- 20100325:	Article  (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer)
	Awarded:    Suspended:  

SCM:  	SPCM:  	CC:  

Retention Warning Counseling:  

- 20090714:	For violation of Article 92.

- 20100107:	For the positive drug urinalysis test you were part of 1st BN 8th Mar unit sweep on 20091217.  Urine specimen was reported positive for THC nanogram level (BAC) of 69 ng.

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 seeks access to Department of Veterans Affairs (VA) services.
2.	The Applicant contends his mental state affected his ability to understand his rights during the discharge process.
3.	The Applicant contends Post-Traumatic Stress Disorder (PTSD), Traumatic Brain Injury (TBI), and depression as a direct result of his deployment to Iraq mitigate his misconduct. 

Decision

Date:  20140403		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 and TBI, 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.  The Applicant’s service record documents completion of a deployment to the Al-Anbar Province of Iraq from March to September 2009, conducting combat operations 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 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  6105 counseling warnings and   for  of the Uniform Code of Military Justice (UCMJ): Article  (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer, ), Article  (Failure to obey order or regulation, ), and Article  (Wrongful use, possession, etc. of controlled substances, marijuana).  The Applicant  a pre-service drug waiver for using marijuana  prior to entering the Marine Corps,  acknowledged  complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 17 September 2007.  Based on the Article 112a violation, processing for administrative separation is mandatory.  When notified of administrative separation processing using the  procedure, the Applicant   right to consult with a qualified counsel but waived  rights to submit a written statement and request an administrative board. 

Issue 1:  (Nondecisional)  The Applicant seeks access to VA services.  The 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.

Issue 2:  (Decisional) (Propriety/Equity)  RELIEF NOT WARRANTED.  The Applicant contends his mental state affected his ability to understand his rights during the discharge process.  After a positive urinalysis for marijuana in December 2009, the Applicant’s battalion commander referred a charge of UCMJ Article 112a to a Special Court-Martial.  Facing a punitive discharge (i.e., Bad Conduct or Dishonorable), confinement, reduction in paygrade to E-1, and a fine, the Applicant was offered, and accepted, after meeting with a qualified counsel, an agreement whereby he would plead guilty to the wrongful use of marijuana and not request an administrative separation board in exchange for the dropping of the charge at a Special Court-Martial.  Though the Applicant was being treated for PTSD and TBI while in service, there is nothing in the records to suggest that he was unable or lacked the ability to understand his rights during this process or the subsequent discharge process.  The Applicant was afforded full due process and all applicable rights and met with a qualified counsel before making his decisions.  The NDRB determined his separation was proper and equitable.  Relief denied.

:  (Decisional) ()  .  The Applicant contends PTSD, TBI, and depression as a direct result of his deployment to Iraq mitigate his misconduct.  The Applicant contends his psychological condition worsened after deployment, and his ability to use good judgment was impaired.  He further contends that given his medical condition and mental state resulted in the Marine Corps acting in an arbitrary, capricious, and abusive manner by not fully considering the impact of TBI and PTSD on his capacity to understand the procedures and implications of the administrative action as well as the TBI and PTSD being the proximate cause for the behavior and negative reaction within his unit’s leadership toward him.  A review of the Applicant’s records shows that he was diagnosed with PTSD and TBI upon his return from Iraq in 2009 and was receiving appropriate treatment.  The records also show that his chain of command, including the battalion medical officer and Separation Authority (Commanding General, 2nd Marine Division), were aware of his PTSD and TBI diagnoses and considered them during the discharge process where all recommended an Under Other Than Honorable Conditions characterization for Misconduct (Drug Abuse).  The Applicant submitted documentation from a civilian psychiatrist who stated that the Applicant still fits criteria for alcohol use disorder and cannabis use disorder, but his symptoms related to PTSD are not primarily due to his substance use and are related to his service in Iraq.  Though the Applicant may feel that PTSD, TBI, and depression as a direct result of his deployment to Iraq were the underlying causes of his misconduct, the record reflects willful misconduct that 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.  After a complete review of the Applicant’s records and his detailed statement and documentation, the NDRB determined PTSD, TBI, and depression did not mitigate his misconduct, and his discharge was warranted, proper, and 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