ex-LCpl, USMC

Current Discharge and Applicant’s Request

Application Received: 20160209
Characterization of Service Received:   
Narrative Reason for Discharge:   IN LIEU OF TRIAL BY COURT MARTIAL
Authority for Discharge:   MARCORSEPMAN 6419 [IN LIEU OF TRIAL BY COURT MARTIAL] 

Applicant’s Request:	Characterization change to:	
Narrative Reason change to: NONE REQUESTED
Reentry Code change to: NONE REQUESTED

Summary of Service

Prior Creditable Service:
Inactive:	USMCR (DEP)	20100308 - 20100808  	Active:	

Period of Service Under Review:
Date of Enlistment:  20100809	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20150317	Highest Rank/Rate:  LCpl
Length of Service:   Year(s)     Month(s)   09 Day(s)
Education Level:  	AFQT:  83

Evaluation Marks (# of occasions):  Performance/Proficiency: 4.2 (10)   Behavior/Conduct: 4.2 (10)   
Fitness Reports: 

Awards and Decorations (per DD 214):	Rifle     (Afghanistan)  ACM (w/2 Stars)  Medal-ISAF Afghanistan   SSDR

Periods of UA:  NONE
Periods of CONF:  Unable to determine
Other Time Lost per DD214:  NONE

NJP:  NONE   SCM:  NONE   SPCM:  NONE   CC:  NONE 

Retention Warning Counseling:  

- 20141209:	For misconduct, drug abuse (anabolic steroids) and notification of being administratively processed for separation.

 
Types of Documents Submitted/reviewed

	DD 214:		Service/Medical Record:		Other Records:	
	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:	
 
Types of Witnesses Who Testified

	Expert:  			Character:    

	Witness E-1:			Witness C-1:	
	Witness E-2:			Witness C-2:

Pertinent Regulation/Law

A.  Paragraph 6419, SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16), effective 26 November 2013.

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)(a), Presumption Concerning Court-Martial Specifications.

DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

1.	The Applicant requests a change to his characterization of service to obtain VA health care benefit for symptoms from his PTSD/TBI.  
2.	The Applicant contends that he is currently on Medicaid and that 19 states will drop veterans from this program in 2017.    
3.	The Applicant requests an upgrade to his characterization of service due to the significance of his injuries suffered during combat to include PTSD and TBI and contends that the punishment for what he committed was inequitable given his superior record of achievement to include earning a Purple Heart while saving the life of a Marine in combat.
4.	The Applicant contends that his impaired judgment was due to the very symptoms sustained from injuries in combat.
5.	The Applicant contends that his use of prohormones, which were legally purchased over-the-counter supplements that he took a urinalysis test for in September 2014, were not banned until 18 December by the Designer Steroid Control Act of 2014. 
6.	The Applicant contends that the positive result of his urinalysis test in September 2014 could have been due to the supplement being a legal prohormone that could cause false positives for steroids similar to the supplement Jack3d, which he used in 2011 until he was told it was banned.   
7.	The Applicant contends that there were reports that the urinalysis sample the took in September 2014 arrived cracked, partially opened and expose to air and that he did not get the results until his lawyer was able to obtain them in March 2015, which came back positive for drostanolone, a steroid that he had never heard of nor knew that it was banned.

Discussion

Date:  20161003		Location:  WASHINGTON D.C.	Representation:  

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 completed a thorough review of the circumstances that led to the discharge and the discharge process to ensure the pertinent standards of equity and propriety were met.  

As a result of the Applicant’s claim of post-traumatic stress disorder (PTSD) or traumatic brain injury (TBI), in accordance with U.S. Code, Title X, Section 1553 (d)(1), and Memorandum, The Secretary of Defense, to Secretaries of the Military Departments, subject: Supplemental Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requests by Veterans Claiming Post Traumatic Stress Disorder (3 Sep. 2014), the NDRB 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 from July 2014 to January 2015 in support of Operation ENDURING FREEDOM.

The Applicant's record of service included:

On 13 February 2015, the Applicant submitted their request for separation in lieu of trial by court-martial.  In the request, the Applicant exercised his right to consult with counsel, acknowledged that he fully understood the elements of the offenses for which he was charged, and was guilty of those offenses.  He certified a complete understanding of the negative consequences of his actions and that characterization of service could be Under Other Than Honorable Conditions which might deprive him of virtually all veterans benefits based upon his current enlistment.

:  The Applicant requests a change to his characterization of service to obtain VA health care benefit for symptoms from his PTSD/TBI. The Applicant also contends that he is currently on Medicaid and that 19 states will drop veterans from this program in 2017.  

The NDRB noted that the Applicant’s DD Form 293 (issues statement) included the Applicant’s request for an upgrade to access mental health care treatment through the VA due to PTSD and TBI.  The NDRB cannot grant a change based solely on this issue; however, the Applicant should be aware that the VA has announced special VA enrollment access for PTSD and mental health treatment to combat veterans discharged under other than dishonorable conditions.  Effective Jan. 28, 2008, combat veterans discharged from active duty on or after January 28, 2003 are eligible for combat veteran enhanced eligibility and enrollment placement into Priority Group 6 (unless eligible for higher enrollment Priority Group placement) for 5 years post discharge.  Additionally, the VA determines the eligibility for enrollment in its programs - independent of the Applicant’s characterization of service as determined by the Marine Corps.  The Applicant, as a combat veteran, is encouraged to contact his local VA affairs representative for more information and may request a review of service and determination of benefits from the VA.  Alternately, he may call 1-877-222-8387 or visit the following website for more information: http://www4.va.gov/healtheligibility/Library/pubs/CombatVet/CombatVet.pdf.

:  The Applicant requests an upgrade to his characterization of service due to the significance of his injuries suffered during combat to include PTSD and TBI and contends that the punishment for what he committed was inequitable given his superior record of achievement to include earning a Purple Heart while saving the life of a Marine in combat. 

The Applicant was screened for PTSD and TBI prior to his administrative separation.  The 6th Marine Regiment Psychologist supports the diagnosis of TBI and diagnosed the Applicant with the Anxiety Disorder Not Otherwise Specified and Post Concussive Syndrome (05 FEB 2015).  He stated that the authenticity of PTSD symptoms would need to be verified with objective data.

The Applicant states his character is demonstrated by his actions in combat.  The Applicant was administratively separated; not separated upon expiration of enlistment or fulfillment of service obligation.  The Applicant admitted guilt to all charges.  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.   Based on the Applicant’s record of service, the NDRB determined the Applicant engaged in conduct involving that constituted a significant departure from the conduct expected of members of the USMC, and the awarded characterization of service was warranted for Under Other Than Honorable Conditions.  

Issue 4:  The Applicant contends that his impaired judgment was due to the very symptoms sustained from injuries in combat.
Though the Applicant may feel that a Mental Health Diagnosis, PTSD, or TBI was the underlying cause of his misconduct, the record reflects willful misconduct that demonstrated he was unfit for further service.  The evidence of record did not show that a Mental Health Diagnosis or TBI were sufficient mitigating factors to excuse the Applicant’s conduct or accountability concerning his actions.  After an exhaustive review, the NDRB determined that a Mental Health Diagnosis, PTSD, or TBI did not mitigate the Applicant’s misconduct.  The actions which resulted in his misconduct were all conscious decisions to violate the tenants of honorable and faithful service.

Issues 5-6:  The Applicant contends that his use of prohormones, which were legally purchased over-the-counter supplements that he took a urinalysis test for in September 2014, were not banned until 18 December 2014 by the Designer Steroid Control Act of 2014. The Applicant also contends that the positive result of his urinalysis test in September 2014 could have been due to the supplement being a legal prohormone that could cause false positives for steroids similar to the supplement Jack3d, which he used in 2011 until he was told it was banned.  

The verification of positive urine drug testing determined that from the evidence that could cause a positive test result, that there was wrongful use by the Applicant.  This determination took place on 18 November 2014.

The Navy Drug Screening Laboratory (NDSL) goes through a very thorough three-level analysis procedure, which includes immunoassay and gas chromatography/mass spectrometry testing, to accurately test all specimens, ensuring each positive sample is screened, confirmed, and all procedures have been followed before a message is released.  All tests (screen and confirmation) must be positive before a positive result is reported to the command.  After carefully reviewing the Applicant’s statements, the NDRB determined it was not sufficient to prove his urinalysis results were false.  Based on the NDSL message, the NDRB determined the Applicant’s urinalysis was not a false positive.

Issue 7:  The Applicant contends that there were reports that the urinalysis sample the took in September 2014 arrived cracked, partially opened and expose to air and that he did not get the results until his lawyer was able to obtain them in March 2015, which came back positive for drostanolone, a steroid that he had never heard of nor knew that it was banned.   The Applicant did not provide any further evidence of the partially opened sample other than his statement.

Urinalysis specimens arriving at a Navy Drug Screening Laboratory (NDSL) are inspected for container damage or evidence of tampering, with particular attention to the condition of the box seals, which should be intact with the command’s Urinalysis Program Coordinator’s signature printed across the taped box seams.  After the package has passed this inspection, lab technicians unpack the urine specimens and carefully check that all bottles in the box correspond to the sample entries written on the accompanying chain of custody form (DD 2624). The bottles are then removed and inspected with the technicians noting any specimen container discrepancies, such as broken bottles, damage of tamper evidence seals, missing, incorrect, or incomplete social security numbers on the bottle labels or DD 2624s, and leakage of urine.  The lab reports all discrepancies back to the command.  The only circumstances that a specimen is not tested are a) there is insufficient volume to test or b) the specimen is adulterated with something that NDSL believes may damage their instruments (e.g. bleach).  The NDSL conducts an initial screening test on all specimens and negative specimens are discarded.  All positive specimens undergo a Gas Chromatography/Mass Spectrometry confirmation test.  The specimen must have tested positive in all tests (screen and confirmatory) and passed scrutiny in numerous reviews by drug testing experts prior to being certified as a positive result and reported to the originating command.  This certification, which is made by a senior chemist, is the final seal of approval necessary prior to reporting the specimen as a positive.  If the final certifying official has any doubt as to the accuracy, scientific validity or legal defensibility of the test results, the specimen is reported as negative in favor of the service member.

The record of evidence clearly shows the Applicant waived his rights to trial by court-martial and 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 trial or administrative separation board, he would have had the opportunity to mount a defense against the charges.  The Applicant submitted insufficient evidence to support his contention, therefore, the NDRB must rely upon the presumption of regularity in the conduct of Government affairs.  Relief denied.

The NDRB recognizes that serving in the all-volunteer Armed Forces is challenging but reflects a commitment to our Nation; thus, service members deserve to be recognized upon completion of their service.  One of the ways in which our service members are recognized is through the determination of their characterization of service.  Most servicemembers, however, serve honorably and therefore earn their Honorable discharges.  In fairness to those Marines and Sailors who served honorably, Commanders and Separation Authorities are tasked to ensure that undeserving servicemembers receive no higher characterization than is due.  The NDRB found the characterization of the Applicant’s discharge was equitable and consistent with the characterization of discharge given others in similar circumstances. 

Decision

After a thorough review of the available evidence, to include the Applicant’s issues, summary of service,  record entries, and discharge process, the Board found  at the time of discharge. Therefore, the awarded characterization of service shall  UNDER OTHER THAN HONORABLE CONDITIONS, the narrative reason for separation shall  IN LIEU OF TRIAL BY COURT MARTIAL with a corresponding separation code of KFS1, and the reentry code shall  RE-4.  The Applicant is not eligible for further reviews by the NDRB.  The Applicant may petition the Board for Correction of Naval Records, 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 for further review using DD Form 149.  

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/.  More information is available at http://www.secnav.navy.mil/mra/CORB/pages/ndrb/default.aspx.

Additional Reviews: After a document review has been conducted, former members are eligible for a personal appearance or telephonic 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-Traumatic Stress Disorder and/or Traumatic Brain Injury: For all claims involving PTSD and/or TBI, the NDRB’s review implemented the guidance set forth in the SECDEF Memorandum of 3 September 2014 (Supplemental guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requests by Veterans Claiming Post Traumatic Stress Disorder).  In accordance with U.S. Code, Title X, Section 1553 (d)(1) & d(2), the NDRB included a member who is a physician, clinical psychologist, or psychiatrist and accorded the case sufficient priority to achieve an expedited resolution and a final decision.

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.

Military Sexual Trauma: The Department of Veterans Affairs (VA) uses the term "military sexual trauma" (MST) to refer to experiences of sexual assault or repeated, threatening sexual harassment experienced while on federal active duty, active duty for training, or inactive duty training.  To get confidential one-on-one help please contact the MST Coordinator at your nearest VA Medical Center or Call Safe Helpline at 1-877-995-5247 or visit www.mentalhealth.va.gov/msthome.asp.

Reporting Military Sexual Trauma: To report a military sexual trauma, you can make an anonymous report to the Naval Criminal Investigative Service (NCIS) by Text or Online.  The NCIS Tip Line provides service members, veterans and civilians a safe, discreet and ANONYMOUS option to report criminal and force protection threats within the USN and USMC without concerns of retaliation.  To report a crime by Text: Text  274637 (CRIMES); Type “NCIS” at the top of the message; and include as much detail as possible to ensure your tip can effectively be investigated.  To send your ANONYMOUS Tip via the online, go to https://www.tipsubmit.com/webtipsNAV.aspx?AgencyID=840.

Suicide Prevention: Veterans in emotional crisis or their loved ones can call the free and confidential Veterans Crisis Line at 1-800-273-8255 (then press 1); or chat online at http://www.veteranscrisisline.net, or send a text message to 838255 to connect with a caring, qualified Veteran Affairs Responder who can deal with any immediate crisis.