ex-PVT, 

Current Discharge and Applicant’s Request

Application Received: 20160301
Characterization of Service Received:   
Narrative Reason for Discharge:   MISCONDUCT
Authority for Discharge:   MARCORSEPMAN 6210.5 [DRUGS] 

Applicant’s Request:	Characterization change to:	
Narrative Reason change to: REQUESTED BUT NOT SPECIFIED
Reentry Code change to: NONE REQUESTED

Summary of Service

Prior Creditable Service:
Inactive:	 	             	Active:	 

Period of Service Under Review:
Date of Enlistment:  20060403	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20100401	Highest Rank/Rate:  LCpl
Length of Service:   Year(s)     Month(s)   29 Day(s)
Education Level:  	AFQT:  68

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

Awards and Decorations (per DD 214):	Rifle  ICM SSDR GWOTSM NDSM LoC (2) CoC (2) LoA CoA MM 
Other Time Lost per DD214:  NONE

NJP:  

- 20080312:	Article 112a (Wrongful use, possession, manufacture or introduction of controlled substance) 
	Awarded:       Suspended:    

- 20091118:	Article 86 (Absence without leave, etc.) 2 specifications 
	Specification 1: 0730-0900, 20091029
	Specification 2: 0715-0733, 20091030 
	Article 107 (False official statements) 2 specifications
	Awarded:       Suspended:      

SCM:  

- 20100122:	Article 86 (Absence without leave, etc.) 2 specifications
	Specification 1: 0545-0630, 20091204; not guilty
	Specification 2: 20091204-20100101, 27 days) 
	Article 91 (Insubordinate conduct toward warrant, noncommissioned, petty officer)
	Sentence:   (20100122-20100214, 22 days)
	CA: Approved and ordered executed

- 20100310:	Article 112a (Wrongful use, possession, manufacture or introduction of controlled substance) 
	Sentence: CONF 21 days (20100305-20100321, 17 days)  
	CA: Approved and ordered executed

SPCM:     CIVIL ARREST:     CC:  

Retention Warning Counseling:  

- 20070117:	For violation of Article 86, unauthorized absence from 0730-1300 and misconduct unbecoming of a Marine, specifically consumption of alcohol to the point of being intoxicated and unable to wake up. 

- 20080313:	For NJP of 20080312 for violation of Article 112a, wrongful use, possession of controlled substance  

- 20091118:	For NJP of 20091118 for violation of Article 86, absence without leave, 2 specifications and Article 107, false official statement, 2 specifications.  

NDRB Documentary Review Conducted (date):	20130213
NDRB Documentary Review Docket Number:	MD12-01110
NDRB Documentary Review Findings:		Proper as issued and that no change is warranted.

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

	  “UNDER OTHER THAN HONORABLE CONDITIONS”
	  “(27) 20091204-20100101, (22) 20100122-20100214, (17) 20100305-20100321”
	
The NDRB will recommend to Commander, Navy Personnel Command or Commandant of the Marine Corps that the DD 214 be corrected as appropriate.

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.  The Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 6 June 2007 until 25 November 2013, Paragraph 6210.5, MISCONDUCT.

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 contends that his waiver of an Administrative Separation Board was unduly influenced by his command who took advantage of his destitute state after his release from the brig.
2.	The Applicant contends his post-service conduct and sobriety warrant consideration for an upgrade.  
3.    The Applicant contends his discharge is inequitable, because he was dealing with post-traumatic stress at the time he was discharged.

Discussion

Date:  20170721	                         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 PTSD, TBI, Military Sexual Trauma, or a mental health condition, and in accordance with 10 U.S.C. § 1553, the NDRB included a member who is a physician, clinical psychologist, or psychiatrist.  Additionally, and pursuant to § 1553, the NDRB reviewed the case with liberal consideration that PTSD, TBI, or Military Sexual Trauma potentially contributed to the circumstances resulting in the discharge of a lesser characterization.  The Applicant’s service record documents completion of a deployment from March to September 2009 in support of Operation Iraqi Freedom.  

The Applicant's record of service included:
Three  
  for  of the Uniform Code of Military Justice (UCMJ): 
Article 112a
	Articles 86 (2 specifications) and 107 (2 specifications)
  for  of the UCMJ:  
  Articles 86 (2 specifications) and 91
  Article 112a

Based on the 2008  committed by the Applicant, the command administratively processed the Applicant for separation, which is mandatory for Article 112a violations.  The Applicant had substantial marijuana abuse (“50-70 times” per his MEPS physical) prior to service, and he enlisted on a drug waiver.   When on leave over Christmas break in 2007, he smoked marijuana with his hometown acquaintances.  Despite this action and his history of abuse, the Applicant’s commanding general decided to retain the member and to allow him to deploy with the potential to separate honorably in the future.  At his NDRB hearing, the Applicant was notably penitent for this Article 112a violation.

Approximately a month after returning from deployment in the fall of 2009, the Applicant was subject to NJP for two short UA periods and for two false official statements.  He maintains that he was absent to attend Sick Call due to depressive symptoms and, due to his change in leadership, he did not know who to inform; he professes he was never seen in Sick Call because the wait was too long.  He waived his right to a qualified counsel for this NJP.  

On 2009 December 05, prior to the onset of Command PT, the Applicant was called to his Sergeant Major’s office.  The Sergeant Major had believed the Applicant to be UA from Command PT and told the Applicant he would be going to the brig.  While the Sergeant Major was on the phone, the Applicant ran off, packed a bag, and left town.  The Applicant described to the Board his overwhelming anxiety at being sent to the brig.  He returned to station three weeks later on his own accord.  He did not use illicit drugs during this period.  At Summary Courts Martial on 2010 January 22, the Applicant was found Not Guilty of the alleged unauthorized absence from Command PT, based on witness testimony; he was however found guilty of his 27-day unauthorized absence and his disrespect to a non-commissioned officer.   

The Applicant told the NDRB that just prior to this Summary Courts Martial, a fellow administrative clerk informed him that he would be sent to the brig for his punishment.  With a sense that this would be his “last hurrah,” the Applicant decided to party prior to his confinement and elected to again smoke marijuana.  He admitted to the Board that while he was again in the wrong, this Article 112a violation was different from the previous because of his poor mental health state.  While in the brig, he had a positive urinalysis; he subsequently went to another Summary Courts Martial on 2010 March 10 and was confined for an additional 21 days.

Of note, the Applicant did not have any in-service mental health diagnoses, nor has he had any since.  He did not receive a Post-Deployment Health Assessment immediately upon his return from Iraq.  He did receive a Post-Deployment Health Re-Assessment (PDHRA) on 18 February 2010, while in confinement.  This PDHRA had some indicators for mental health symptoms; however, insufficient for the provider to support a referral for further evaluation; the provider who reviewed the form noted that the member was separating on 2010 April 30 and could follow-up with the VA.

The NDRB did not have the Applicant’s administrative separation package to determine whether or not the Applicant waived his rights to consult with a qualified counsel, submit a written statement, and request an Administrative Separation Board.  His separation code HKK1 indicates that he waived these rights, and he acknowledges doing so when presented with the opportunity to separate on 2010 April 01; that date was his initial EAOS but it had been adjusted to 2010 May 29 due to brig time.  Per the slide show he submitted, he was offered the choice to fulfill his obligation and receive a Bad Conduct Discharge or to separate on April 1st with an Other Than Honorable.  He elected the latter option.  

:  The Applicant contends that his waiver of an Administrative Separation Board was unduly influenced by his command who took advantage of his destitute state after his release from the brig.  The Applicant described to the Board how his pay was being held due to his forfeiture of pay.  Since he was reliant on Commuted Rations to pay for meals at the galley, he was unable to feed himself and was dependent on friends bringing him food.  Thus, he contends, he readily agreed to his separation on 2009 April 01 in order to leave the base and obtain work and food.  The Board can understand how these actions may appear improper, but the withholding of pay is a normal punishment for the offenses committed.  Moreover, had he met with an Administrative Separation Board, it would not have been likely to change his characterization to a more favorable determination than Other Than Honorable, since based on his presentation, the option of pursuing a Bad Conduct Discharge via a Special Courts-Martial was being considered by his command.

Issue 2:  The Applicant contends his post-service conduct and sobriety warrant consideration for 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 moving testimony about his cessation of marihuana in 2012.  He described how he was working as a teacher’s aide with a child with muscular dystrophy and how the Applicant’s positive drug test then left that child without support; this continues to weigh on his conscience.  He further testified that he is employed as a Commercial Vehicle Operator with now, with the extra certification of a HAZMAT qualification, and undergoes frequent urine and hair drug screens.  He is married, raising four children, and is active in his church community.  He has been attending community college to earn his degree as a welder and submitted a letter of reference from one of his teachers.  The NDRB found all of these factors commendable but did not deem them sufficient to alter the characterization of discharge, given the quantity of the Applicant’s misconduct during service.

Issue 3:  The Applicant contends his discharge is inequitable, because he was dealing with post-traumatic stress at the time he was discharged. The government enjoys a presumption of regularity in the conduct of its affairs.  The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue.  The Applicant stated he made an appointment for feeling depressed but when it had to be re-scheduled, he declined to be seen, nor did he avail himself of chaplain or Fleet and Family Service Center resources.  He did not present his concerns at his brig screening physical but did note them a few weeks later on his PDHRA; the provider indicated the minor nature of his complaints did not need further evaluation at that time but could be evaluated by the VA after discharge.  The Applicant he has been unable to get care through the VA due to his discharge characterization and has not been able to afford care otherwise.  In summary, the NDRB did not find any reference to a medical diagnosis of PTSD in the Applicant’s service record to support his claim, and the Applicant did not provide any documentary evidence of a medical diagnosis by competent medical authorities to support his claim.  Though the Applicant may feel that PTSD was the underlying cause of his misconduct, the record reflects willful misconduct that demonstrated he was unfit for further service.  Even with liberal consideration applied, the evidence of record did not show that mental health was a sufficient mitigating factor to excuse the Applicant’s conduct or accountability concerning his actions.  

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  MISCONDUCT with a corresponding separation code of HKK1, 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.