ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20151103
Characterization of Service Received:   
Narrative Reason for Discharge:   MISCONDUCT (DRUG ABUSE)
Reenlistment Code:  
Authority for Discharge:   MARCORSEPMAN 

Applicant’s Request:	Characterization change to: 
	Narrative Reason change to: 

Summary of Service

Prior Service:
Inactive:	USMCR (DEP)	20110408 - 20111031  	Active:	

Pre-Service Drug Waiver:  

Period of Service Under Review:
Date of Current Enlistment:  20111101	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20150806	Highest Rank:  
Length of Service:    Year(s)    Month(s)  06  Day(s)
Education Level:  	AFQT:  35
MOS:  3531
Proficiency/Conduct Marks (# of occasions):   () /  ()	Fitness Reports:  

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

Periods of CONF:  

NJP:  
 
SCM:  

SPCM:  

CC:  

Retention Warning Counseling:  

- 20141226:	For violation of Article 86 (Absence without leave), Article 91 (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer), and Article 92 (Failure to obey order or regulation).  On 20141222 I was ordered by the Motor Transport Platoon Sergeant to report to Building 1880 at 0700, 20141223 for accountability prior to going to my medical appointment.  I have been ordered by the 2d Combat Engineer Battalion Medical Officer to report daily no earlier than 0700 due to medical reasons, I blatantly disobeyed the order given by my Platoon Sergeant and decided to not report to work.  My Platoon Sergeant went to my house to ensure I was accounted for and on my welfare.  My excuse for not showing up was that I overslept.  I was also ordered to have another noncommissioned officer accompany myself to my appointment due to the fact that I have missed numerous appointments in the past.  I refused to allow the noncommissioned officer into my vehicle and proceeded to drive to my appointment.  I have displayed a continued lack of respect for my senior leadership by disobeying orders that I do not agree with.

- 20150120:	For violation of Article 86 (Absence without leave), Article 91 (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer), and Article 92 (Failure to obey order or regulation).  On 20150116, I was ordered by the Motor Transport Platoon Sergeant to report to Building 1880 at 0730, 20150120 for accountability.  I have been ordered by the 2d Combat Engineer Battalion Medical Officer to report daily no earlier than 0730 due to medical reasons.  I did not report to my work section until 0935 and was unable to stand or have a conversation with my Platoon Sergeant or my Staff Non-Commissioned Officer.  I was disrespectful in deportment where as I kicked a chair after I was ordered to sit down by both Sergeant B___ and Staff Sergeant C___.  My excuse for not showing up was that I over slept due to my sleep medication and that I had lost my Military Identification Card.  I have displayed a continued lack of respect for my senior leadership by disobeying orders that I do not agree with.

- 20150225:	For violation of Articles 86 and 92 of UCMJ, in that on 20150223, I was instructed by my SNOCIC to go see the Medical Officer (MO) at the BAS at 1300, after I was released by the MO at 1310 I decided to go home without informing anyone.  At 1442, I was contacted by my SNCOIC.  I informed him that I left the base to go to my peak performance appointment at 1500.  I have previously been counseled by my SNCOIC to check with him or the Platoon Sergeant before I go to any appointments.  I continuously demonstrated my disregard for any orders that I do not agree with.

- 20150225:	For violation of Article 91 (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer), Article 92 (Failure to obey order or regulation).  On 20150211, I was ordered by the Motor Transport Chief to report to Building 1851 (Battalion Armory) at 0430, 20150212 with the required gear for the company hike for accountability.  I reported on time but did not have the required gear.  I have displayed a continued lack of respect for my senior leadership by disobeying orders that I do not agree with.

- 20150316:	For violation of Article 112a (Wrongful use, possession, etc., of controlled substances).  On 21 January 2015, you reported to work showing signs of disillusion and stupor, you were ordered to 2d CEBs MO to conduct a fit for duty as well as a prescription pill count to ensure the appropriate number of pills on hand.  When you arrived you were unable to produce your prescription Lorazepam, a drug you are currently prescribed by competent medial authority to take 1.5 mg as needed at night.  Lorazepam completely metabolizes in the human body at a rate of 1 mg per 8 hours.  Had you been taking your prescriptions in accordance with the medical authority’s orders your toxicology report would have shown 0.000 mg/L.  Additionally, since you claimed you had not taken any Lorazepam since 17 January 2015, your toxicology report would have shown 0.000 mg/L.  Your misuse of your prescription medication directly violates the Marine Corps’ zero drug tolerance policy.

- 20150420:	For the following misconduct, specifically, violation of Article 86 (Absence without leave) and 92 (Failure to obey order or regulation) in that on 20150323 you were instructed by Sgt B___, to be at the Motor Pool at 0600 for formation the next day.  You didn’t arrive at the Motor Pool on 20150324 until 0635.  When questioned by Sgt B___ and SSgt C___, you stated you had a marriage retreat at 0800.  SSgt C___ instructed you to stay in the office and wait for further word.  You decided to leave the Motor Pool without authority.  As you proceeded to leave, SSgt C___ and Sgt B___ told you to come back.  You kept walking and ignored their calls.  You had to be chased down and instructed a second time to go back into the office.  You stated that you were leaving and you didn’t care, and there was nothing that we could do to you.  SSgt C___ had to instruct you a third time to go back into the office and you stated that you wanted to talk to the Chaplain.  Once you got to the Chaplain’s office you told him that you were denied to see the Chaplain.  You continuously demonstrate disregard for any orders that you do not agree with.

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.  A.  Paragraph 6210, MISCONDUCT, 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 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 the Narrative Reason for his separation is improper due to his administrative separation board’s determination that the preponderance of the evidence did not support his having knowingly or willfully abused drugs.  

Decision

Date:  20160706	   	Location: Washington D.C.	 Representation: 

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

Discussion

The Naval Discharge Review Board (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.  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.  

As a result of the Applicant’s in-service claim of PTSD or TBI and actual diagnoses of Anxiety Not Otherwise Specified and Personal History of TBI of unknown level of severity, in accordance with U.S. Code, Title X, Section 1553 (d)(1) and (e)(2), the Naval Discharge Review Board included a member who is a clinical psychologist, psychiatrist, or a physician with special training on mental health disorders.  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 indicates that he was screened for PTSD and TBI related to his combat service in Afghanistan.  The Applicant’s service record documents completion of a deployment to Afghanistan from 7 October 2012 to 22 April 2013 conducting combat operations in support of Operation ENDURING FREEDOM.

:  (Decisional) ()  .  The Applicant contends the Narrative Reason for his separation is improper due to his administrative separation board’s determination that the preponderance of the evidence did not support his having knowingly or willfully abused drugs.  The Applicant further contends that his separation was solely based upon his being late one day and being on a medical board.  The Applicant’s record documented six retention warnings for repeated violations of Article 86 (Absence without leave), Article 91 (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer), and Article 92 (Failure to obey order or regulation).  The record also documented a violation of Article 112a (Wrongful use, possession, etc., of controlled substances) for misuse of prescription medications.  The Applicant was notified of separation based on Drug Abuse and Pattern of Misconduct.  His administration separation board found that the preponderance of the evidence supported his violations of UCMJ Articles 86, 91, and 92 but not the 112a.  His administrative board recommended his separation with a general characterization of service, that his separation not be suspended, and that he should not be retained in the inactive ready reserves.  Since the Applicant was notified for separation for both Drug Abuse and Pattern of Misconduct and his separation board found a basis for the Pattern of Misconduct, a narrative reason of separation of MISCONDUCT is the most appropriate characterization of service based on the authorities in paragraph 6210.3 (Pattern of Misconduct) of the Marine Corps Separation and Retirement Manual.  Further, the Board finds that a narrative change from “MISCONDUCT (DRUG ABUSE)” to “MISCONDUCT” is warranted based on the regulations in effect at the time of the Applicant’s discharge where the narrative should have simply stated: “MISCONDUCT.”  Partial relief granted.

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 remain , the narrative reason for separation shall change to MISCONDUCT with the corresponding separation code of GKA1.   The reentry code will change to RE-4.  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, or http://www.secnav.navy.mil/mra/bcnr/Pages/default.aspx 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:  Effective 6 February 2015, the NDRB is authorized to change a NDRB Applicant’s Reenlistment Code if related to an accompanying change in discharge characterization or narrative, but this authority is strictly limited to those cases where an applicant’s narrative reason or characterization of discharge is changed and that change warrants revision of the previously issued reenlistment code.  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