ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20140307
Characterization of Service Received:   
Narrative Reason for Discharge:   
Authority for Discharge:   MARCORSEPMAN 

Applicant’s Request:	Characterization change to: 
	Narrative Reason change to: CONVENIENCE OF THE GOVERNMENT

Summary of Service
Prior Service:
Inactive:	USMCR (DEP)	20000907 - 20010115  	Active:	

Pre-Service Drug Waiver:  

Period of Service Under Review:
Date of Current Enlistment:  20010116	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20050331	Highest Rank:  
Length of Service:    Year(s)    Month(s)  16  Day(s)
Education Level:  	AFQT:  62
MOS:  6114
Fitness Reports:  
Awards and Decorations (per DD 215):	Rifle  (3) Pistol   (2) NUC       
Periods of UA/CONF:  

NJP:  	SPCM:  	CC:  	Retention Warning Counseling:  

SCM:  

- 20041129: 	Article  (Wrongful use, possession, etc. of controlled substances, cocaine)
	Article  (General Article - wrongfully solicited LCpl to distribute cocaine)
	Sentence:     Suspended:  FOP RESTR

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 Department of Veterans Affairs (VA) benefits.
2.	The Applicant contends it is an injustice for him to continue to suffer the adverse consequences of his discharge.
3.	The Applicant contends his discharge is too harsh and worse than others with the same offense.
4.	The Applicant contends his in-service conduct warrants an upgrade.
5.	The Applicant contends he is innocent.
6.	The Applicant contends Post-Traumatic Stress Disorder (PTSD) mitigates his misconduct.
7.	The Applicant contends his post-service conduct warrants an upgrade.

Decision

Date:  20140529		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.  The Applicant’s service record documents completion of a deployment to Iraq from February to May 2003, conducting combat support 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 Applicant’s record of service included   for  of the UCMJ: Article 112a (Wrongful use, possession, etc. of controlled substances, cocaine) and Article 134 (General Article - wrongfully solicited LCpl to distribute cocaine).  The Applicant  a pre-service drug waiver for using marijuana  prior to entering the Marine Corps and had a March 1998 (pre-service) court ticket for marijuana.   acknowledged  complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 6 September 2000.  Based on the Article 112a violation, processing for administrative separation is mandatory.  On 05 October 2004, the Applicant submitted a pre-trial agreement (PTA) to plead guilty at a nonjudicial punishment or a summary court-martial and waive his administrative separation board if the charges were withdrawn from a special court-martial.  When notified of administrative separation processing using the  procedure, the Applicant   rights to consult with a qualified counsel and submit a written statement, but, per his PTA, he waived his right to request an administrative board.
 
:  (Nondecisional)  The Applicant seeks VA 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.

:  (Decisional) ()  .  The Applicant contends it is an injustice for him to continue to suffer the adverse consequences of his discharge.  The characterization of service is determined by the quality of the member’s total performance of duty and conduct during the current enlistment, including the reason for separation.  While the Applicant may feel it is an injustice for him to continue to suffer the adverse consequences of his discharge, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service.  The evidence of record does not demonstrate the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  Based on the Applicant’s record of service, the NDRB determined the Applicant 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 the awarded characterization of service was warranted.  Relief denied. 

:  (Decisional) ()  .  The Applicant contends his discharge is too harsh and worse than others with the same offense.  The NDRB reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis.  If such a review reveals an impropriety or inequity, relief is in order.  Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval Service.  Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Marine Corps.  The Applicant submitted a PTA to avoid a possible punitive discharge and a potentially more severe sentence.  The NDRB found the characterization of the Applicant’s discharge was equitable and consistent with the characterization of discharge given others in similar circumstances.  Relief denied. 

4:  (Decisional) ()  .  The Applicant contends his in-service conduct warrants an upgrade.  Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, 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.  The NDRB found the characterization of the Applicant’s discharge was equitable and consistent with the characterization of discharge given others in similar circumstances.  Relief denied. 

5:  (Decisional) ()  .  The Applicant contends he is innocent.  The Applicant states in his personal statement along with his DD Form 293 that he never tested positive on any urinalysis.  The Applicant further states that he only repeated the things that Criminal Investigation Division (CID) told him he had done after he was broken from being interrogated all day while he was hung over and lied to by investigators.  The record shows the Applicant was interviewed by CID on 27 February 2004 and pled guilty to violating Articles 112a and 134 of the UCMJ at a summary court-martial on 29 November 2004.  The record of evidence also shows the Applicant pled guilty at summary court-martial to avoid going to trial at a special court-martial and waived his right to an administrative separation board.  If the Applicant felt he was mistakenly charged with a crime, it was his obligation to contest those charges at the time they were made.  During a special court-martial or administrative separation board, he would have had the opportunity to mount a defense against the charges.  The Applicant’s statements that he was confused about the military legal process and that he was rushed through the system do not overcome the presumption of regularity.  In contradiction to the Applicant’s contention of innocence, the Applicant submitted a letter to the Commanding General, 2D Marine Aircraft Wing where he stated, “When I was first confronted by military personnel concerning the matter at hand, I was forthright about my culpability in the matter.  I chose to be truthful and admit to that which I had done as I knew it was wrong and distasteful….  I took responsibility for my own actions despite the consequences that lie ahead.  I had a serious lapse in judgment and made a grave mistake….”  The NDRB discerned no impropriety or inequity in the Applicant’s discharge.  Relief denied. 

6:  (Decisional) ()  .  The Applicant contends PTSD mitigates his misconduct.  The Applicant states in his personal statement along with his DD Form 293 that “[he has never] been diagnosed by a doctor for PTSD, mainly because I have no medical insurance for mental health and can’t afford it out of pocket.”  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.  Moreover, the Applicant did not provide any evidence of a diagnosis of PTSD from any other private mental health treatment provider to document his claim.  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 Iraq.  Furthermore, the Applicant’s record does not document any attempts to seek help for any combat stress-related symptoms while in service.  The Applicant’s Post-Deployment Health Assessment dated 14 May 2003 showed no signs of any mental health issues.  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 an exhaustive review, the NDRB determined PTSD did not mitigate the Applicant’s misconduct.  Relief denied.

7:  (Decisional) ()  .  The Applicant contends his post-service conduct warrants an upgrade.  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 and four character references.  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 the characterization 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