ex- PFC, 

Current Discharge and Applicant’s Request

Application Received: 20160727
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: COMPLETION OF REQUIRED ACTIVE SERVICE
Reentry Code change to: REQUESTED, BUT NOT SPECIFIED

Summary of Service

Prior Creditable Service:
Inactive:	 	             	Active:	 		

Period of Service Under Review:
Date of Enlistment:  20071105	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20100604	Highest Rank/Rate:  LCpl
Length of Service:   Year(s)     Month(s)   00 Day(s)
Education Level:  	AFQT:  41

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

Awards and Decorations (per DD 214):	Rifle MM ICM (w/1 Bronze Service Star) SSDR GWOTSM NDSM MM 

Periods of UA:  NONE
Periods of CONF:  NONE
Other Time Lost per DD214:  NONE

NJP:  

- 20080714:	Article 92 (Failure to obey order, regulation) 
	Awarded:       Suspended:      

- 20100203:	Article 112a (Wrongful use, possession, manufacture or introduction of controlled substance)
	Awarded:        Suspended:        

- 20100325:	Article 91 (Insubordinate conduct toward warrant, noncommissioned, petty officer) 
	Awarded:       Suspended:        

SCM:    SPCM:    CIVIL ARREST:    CC:  

Retention Warning Counseling:  

- 20090714:	For NJP in 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    

- 20100204:	For refusal of substance abuse rehabilitation program treatment and notification of being processed for administrative separation.

- 20100323:	For violation of Article 91, insubordinate conduct toward Warrant Officer, Noncommissioned Officer, or Petty Officer in that on or about 20100322 you were observed as driving a POV recklessly in the seven day store parking lot aboard Marine Corps Base, Camp Lejeune, when followed, confronted and corrected by a Sgt, you were disrespectful in body language, words and tone, upon questioning you failed to report your proper name and unit. 

NDRB Documentary Review Conducted (date):	20140403
NDRB Documentary Review Docket Number:	MD14-00152
NDRB Documentary Review Findings:		Proper as issued and that no change is warranted.

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 requests a change to his character of service in order to obtain VA health benefits contending that he is entitled to an upgrade based on his diagnosis of PTSD.
2.	The Applicant contends that his discharge was not proper because his command influenced his decision regarding his disposition agreement offered by his Commanding Officer.
3.	The Applicant contends that his discharge was not proper because he was under the influence of prescribed medication, not in the proper state of mind, and it was likely that he could not comprehend the issues associated with the decisions he was making related to the allegation of his drug abuse and the disposition agreement.
4.	The Applicant contends that his discharge was not proper because there were errors associated with the urinalysis lab report that made it impossible to determine that the sample provided by the Applicant was the same sample that tested positive. 
5.	The Applicant contends that he was not aware of the discrepancy with the urinalysis lab report and that if he did, he would not have waived his right to an Administrative Separation Board.
6.	The Applicant contends that his discharge was not equitable based on his record of combat, his overall service record, and his conduct both prior and subsequent to his military service.

Discussion

Date:  20170418		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. Pursuant to 1553 (d)(2), the service secretary expedited a final decision and accorded the case sufficient priority to achieve an expedited resolution.  

The Applicant's record of service included:

  for  of the Uniform Code of Military Justice (UCMJ): 
	Article 91 (Insubordinate conduct toward warrant, noncommissioned, petty officer)
	Article 92 (Failure to obey order, regulation)
	Article 112a (Wrongful use, possession, manufacture or introduction of controlled substance)

Based on the  committed by the Applicant, the command administratively processed the Applicant for separation.  Based on the Article 112a violation, processing for administrative separation is mandatory.   When notified of administrative separation processing, the Applicant  his rights to consult with a qualified counsel and waived his rights to submit a written statement and request an Administrative Separation Board.    

:  The Applicant requests a change to his character of service in order to obtain VA health benefits contending that he is entitled to an upgrade based on his diagnosis of PTSD.  The record shows that the Applicant was diagnosed with PTSD and TBI in-service.  The NDRB has no authority to upgrade a discharge for the sole purpose of facilitating access to VA benefits.  Regulations limit the NDRB’s review solely to a determination of the propriety and the equity of a discharge.  As such, this issue does not serve to provide a foundation upon which the NDRB can grant relief.  The Applicant is directed to the Addendum, specifically, the paragraph regarding the U.S. Department of Veterans Affairs (VA), who determine eligibility for post-service benefits, not the NDRB.  The VA conducts its own determination of eligibility based on service records and input from an Applicant upon their request.  The Applicant should refer to the Veterans Administration website (http://www1.va.gov/opa/Is1/1.asp) for additional assistance regarding a benefit determination review. 

:  The Applicant contends that his discharge was not proper because his command influenced his decision regarding his disposition agreement offered by his Commanding Officer (CO).  The Applicant stated (through counsel) that when he was provided the disposition agreement (for a guilty plea to the allegation at NJP/Summary Court-Martial (SCM) and waiving the right to an Administrative Discharge Board, the CO would agree to dispose of the matter at NJP/SCM and not refer the allegation to trial by Special Court-Martial), his First Sergeant and Gunnery Sergeant advised him to waive his right to an Administrative Separation Board for an Other Than Honorable characterization of service.  The Applicant also stated that when he was notified of his administrative separation, the CO’s Legal Officer advised him and the other Marines who had been provided with disposition agreements that it would be in their best interest to waive their rights to an Administrative Separation Board and agree to be separated.  He further stated that the Legal Officer told them that if they chose their right to an Administrative Separation Board that they would be further punished because this Board is exactly like a trial by court-martial.  

The NDRB 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.  There is no evidence other than the Applicant’s statements that his command influenced his decision.  There was no evidence in the Applicant’s service record that the Applicant’s command did anything improper and was there was no evidence provided by the Applicant other than his statements.  Although the Applicant feels that his command influenced his decision regarding his disposition agreement offered by his Commanding Officer, his statements alone do not overcome the government’s presumption of regularity in this case.

:  The Applicant contends that his discharge was not proper because he was under the influence of prescribed medication, not in the proper state of mind, and it was likely that he could not comprehend the issues associated with the decisions he was making related to the allegation of his drug abuse and the disposition agreement. The Applicant stated that he was prescribed Trazadone, Prazosin, Seroquel, Naproxen, Zoloft, Midrin, and Lamictal; and that one of the possible side effects of Trazodone is confusion of time, place, and self.  The Applicant stated that the prescription medication altered his state of mind, making it more difficult for him to understand the consequences and ramifications of the decisions he was making.  He further stated that side effects of Trazodone likely altered his state of mind where he did not understand the process.

The NDRB conducted a thorough review of the Applicant’s service and medical records and determined that it was unlikely that medications he was materially affected his ability to understand the decisions he made as related to the allegation of his drug abuse and disposition agreement offered by his Commanding Officer.  

Issue 4-5:  The Applicant contends that his discharge was not proper because there were errors associated with the urinalysis lab report that made it impossible to determine that the sample provided by the Applicant was the same sample that tested positive.  Further, the Applicant contends that he was not aware of the discrepancy with the urinalysis lab report and that if he did, he would not have waived his right to an Administrative Separation Board. 

A discrepancy code of “LX” was listed for the Applicant’s urinalysis sample that tested positive for THC.  The LX means that there was a discrepancy involving the Applicant’s social security number and is described as being as “incorrect, incomplete, illegible, missing overwritten, not original, or not forensically correct.  

With a discrepancy code of “LX” the NDRB was unable to determine what the specific discrepancy was that involved the Applicant’s social security number.  However, the record shows that the social security number did match to the Applicant’s social security number (otherwise an LN discrepancy code would have been noted), and the three-digit specimen number as well as a match to the four-digit batch number.  Further, the Applicant signed the label confirming the information was correct (to include that his social security number matched his specimen).  There were no other discrepancies noted on the specimen form in the Applicant’s service record.  Given all of the other indicators mentioned being correct and the ambiguity of the “LX” discrepancy code not specifically defining the issue with the Applicant’s social security number, the NDRB found that the “LX” discrepancy code was a mere clerical error and not a substantive testing error; and thus the positive urinalysis sample belonged to the Applicant.

The Applicant contends that he was not aware of the discrepancy with the urinalysis lab report and that if he did, he would not have waived his right to an Administrative Separation Board.  The NDRB 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.  During the hearing, the Applicant stated that his command did not provide him with any evidence of his drug test.  The record shows that the Applicant received documentary evidence from his Commanding Officer (enclosure (2) of his letter to the Applicant of notification for disposition of Article 112a, UCMJ allegation, 08 January 2010) and that the Applicant acknowledged this evidence when agreeing for the disposition in his letter to his Commanding Officer, dated 08 January 2010.
The record also shows that he received this documentary evidence prior to meeting with defense counsel.  There is no evidence that the Applicant’s Command did anything improper or denied the Applicant any evidence as related to his Article 112a UCMJ allegation.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.

Issue 6:  The Applicant contends that his discharge was not equitable based on his record of combat, his overall service record, and his conduct both prior and subsequent to his military service.  The record shows and as stated by the Applicant, he deployed to Iraq in 2009 where he earned the Iraqi Campaign Medal (with Bronze Service Star) and a Sea Service Deployment Ribbon.  The Applicant stated (through counsel) that up until his deployment to Iraq and prescribed medications, he did not have any misconduct in his Service Record Book.  The Applicant stated that his post-service conduct includes that he has a blemish free background, has been employed with the same company for four years, continues his PTSD/TBI treatment, volunteers at this local church, and continues to maintain a supportive community of people, including friends and family.  

The record shows that the Applicant had one NJP for violation of Article 92 of the UCMJ prior to his deployment to Iraq.  

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.  However, post-service conduct 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 provides a basis for a more thorough understanding of the performance of the Applicant during the period of service that is the subject of the discharge review.  The Board determined that the Applicant post-service conduct was not substantive factor to warrant an upgrade.  

However, the NDRB looked at the totality of the facts and circumstances concerning the Applicant’s case and determined that an upgrade to General, (Under Honorable Conditions) was warranted.  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.  An Honorable characterization of service is warranted when the quality of a member’s service generally meets the standard of acceptable conduct and performance for naval personnel, or is otherwise so meritorious that any other characterization of service would be clearly inappropriate.  A General (Under Honorable Conditions) discharge is warranted when the quality of the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service record.  An Under Other Than Honorable Conditions discharge is warranted when a member engages in conduct involving one or more acts or omissions that constitute a significant departure from the conduct expected of members of the Naval Service.  

In this case, the Board found that the Applicant’s service was honest and faithful but significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service record.  Specifically, the NDRB found that the Applicant was guilty of a one-time offense of Article 112a (Wrongful use of a controlled substance) as well as the Article 91 (Insubordinate conduct) and Article 92 (Failure to obey order).  However, the Applicant’s service record documents he was diagnosed with PTSD and TBI in-service as a result of a deployment to Iraq.  The Board weighed the fact the Applicant was diagnosed and treated (by prescription medication) for PTSD.  As such, the NDRB provided liberal consideration that the Applicant’s PTSD potentially contributed to the circumstances resulting in the discharge of a lesser characterization. Thus, the NDRB found that the awarded characterization of service was inequitable and that relief in the form of an upgrade in the characterization of service to General (Under Honorable Conditions) is warranted. 

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 .  Therefore, the awarded characterization of service shall  GENERAL (UNDER 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.