ex- LCpl, 

Current Discharge and Applicant’s Request

Application Received: 20160626
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: NONE REQUESTED
Reentry Code change to: NONE REQUESTED

Summary of Service

Prior Creditable Service:
Inactive:	 	             	Active:	 20030219 - 20070309  
				 20070310 - 20100826  

Period of Service Under Review:
Date of Enlistment:  20100827	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20151112	Highest Rank/Rate:  Cpl
Length of Service:   Year(s)     Month(s)   16 Day(s)
Education Level:  	AFQT:  74

Fitness Reports: 

Awards and Decorations (per DD 214):	Rifle  Pistol  PH CAR (Afghanistan) CAR (Kuwait/Iraq) GCM (2) NDSM ACM (w/2 Stars) ICM (w/1 Star) GWOTSM SSDR (3) NATO Medal-ISAF Afghanistan BEODI SEODI  

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

SCM:  

- 20131216:	Article 112a (Wrongful use, possession, manufacture or introduction of controlled substance) 2 specifications
	Sentence: RIR-E5  for 60 days  
	CA: The sentence is ordered executed 
NJP:  

- 20140130:	Article 112a (Wrongful use, possession, manufacture or introduction of controlled substance) 
	Awarded: -E4      Suspended:    [Extracted from Fitness Report dated 20140327]   

SPCM:    CIVIL ARREST:     CC:  

Retention Warning Counseling:  

- 20111221:	For violation of Article 86 (Unauthorized absence), 90 and 92 (Failure to obey and order or regulation)  

- 20140130:	For battalion NJP on 20140130 for violation of the UCMJ, Article 112a (Wrongful use of controlled substance). 

Administrative Corrections to the Applicant’s DD 214

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

	  “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 030219 UNTIL 100826”
	  “MISCONDUCT”
	
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 26 November 2013 until present, 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 he was treated inequitably because his Hazardous Duty Pay was held once he was removed from EOD duties due to medical reasons.  
2.	The Applicant contends his discharge is improper due to misconduct by the Physical Evaluation Board.
3.	The Applicant contends his discharge is improper due to denial of due process.
4. 	(Board issue)  The Applicant’s discharge may have been inequitable because liberal consideration that his misconduct was mitigated by his PTSD was not applied when determining his discharge characterization.  

Discussion

Date:  20171002		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 one deployment  in 2005 in support of Operation. IRAQI FREEDOM and two in support of Operation ENDURING FREEDOM in Afghanistan in 2010 and 2011..  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 112a (Wrongful use, possession, manufacture or introduction of controlled substance) 

  for  of the UCMJ:  
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, a mandatory process for all Article 112a violations.  When notified of administrative separation processing, the Applicant  his rights to consult with a qualified counsel and submit a written statement.   This process was initiated in April 2015 but put on hold by his Commanding Officer pending his process through the Physical Evaluation Board (PEB).  After the Informal PEB found him fit for continued service in September 2015, his company-level Commanding Officer recommended he be retained while his battalion-level Commanding Officer recommended separation with an Other Than Honorable (OTH) discharge.  The Applicant appealed his PEB finding and was granted a Formal PEB, which was held on 29 October 2015; the Formal PEB voted the member unfit for further service, but the PEB process was terminated by USMC Headquarters on 05 November 2015, prior to release of this decision.   

The Applicant received notice from USMC Headquarters on 03 November 2015 of his pending OTH separation in 10 days.  His lawyer appealed this decision by email on 06 November 2015, requesting a delay in his separation, pending the Formal PEB’s decision.  This request was acknowledged, but the Applicant’s discharge still proceeded as directed.  After further appeal with BCNR, the discharge characterization was upgraded to General in March 2017.

:  The Applicant contends that he was treated inequitably because his Hazardous Duty Pay was held once he was removed from EOD duties due to medical reasons.  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 Board of Corrections of Naval Records (BCNR), if he wishes to have this matter further addressed.  

:  The Applicant contends his discharge is improper due to misconduct by the Physical Evaluation Board. Specifically, the Applicant claims the PEB lost his original Informal PEB submission and that the second submission, which led to a finding of Fit, was not a full and complete record.  He presented documentary evidence to support this.  The Applicant contends that had the full submission been reviewed by the Informal PEB, that board would have determined him to be physically disabled  – as the Formal PEB ultimately did – and that his Commanding Officer who had delayed Applicant’s separation while waiting on this determination would surely have recommended a different a different discharge; otherwise, there was no reason to delay the separation.  Similarly, had the Applicant been allowed to complete his PEB processing, through to the finalization of his Formal PEB decision, he would have been recommended for a more favorable discharge characterization.

Department of Defense regulations provide that disciplinary separations supersede disability separations.  Dual processing of PEB cases and of misconduct cases or administrative separations is permitted under Marine Administrative Message 328/10, Requirements for Medical Evaluation of Marines Before Involuntary Administrative Separation (June 10, 2010). After fiscal year 2014, Marine Corps policy required the general court-martial convening authority (GCMCA) to review the screenings and document why the servicemembers should be separated and with which service characterization in light of the identified PTSD or TBI as a contributing factor.  The Applicant’s battalion-level Commanding Officer elaborated on this issue in his/her recommendation but Commander, Marine Corps Installation National Capital Region, Marine Corps Base Quantico – the GCMCA who ultimately issued the debarment – did not.  The Board acknowledges that this is technically improper; however, the arguments put forth by the battalion-level company officer are well reasoned and informative.  There is no reason to believe that had the GCMCA in fact also elaborated on his reasoning for OTH that he would have arrived at a different conclusion in terms of characterization of service.  With regards to characterization of service, relief denied.

With regards to the requested change in narrative reason for separation to one indicating a medical disability or other medical-related reasons, the NDRB does not have the authority to enact such a change.  Only the Board for Correction of Naval Records can grant this type of narrative reason change; the Applicant is directed to the Addendum for further information.  

Issue 4:  (Board issue)  The Applicant’s discharge may have been inequitable because liberal consideration that the Applicant’s misconduct was mitigated by his PTSD was not applied when determining his discharge characterization.  

It is clearly evident that his battalion-level Commanding Officer knew of the Applicant’s PTSD diagnosis and ongoing treatment and weighed this diagnosis as factor when making his recommendation for discharge.  He explained in his letter of 25 September 2015 why he believed mitigation had already been granted “as evidenced by the charges being withdrawn from special court-martial and allowing his third confirmed positive urinalysis (wrongful use of marijuana) to be adjudicated at an NJP vice the command pursuing a punitive discharge.”  However, this recommendation was made prior to the requirement, consistent with 10 U.S.C. § 1553, that mitigation due to PTSD be liberally applied.  The Board recognized that PTSD was a mitigating factor in the Applicant’s use of marijuana and that his earlier misconduct was of a minor nature; thus, a General characterization is more equitable than OTH when liberal consideration applied.  This change has already been enacted by BCNR.  However, even with liberal consideration, the Applicant’s repeated use of marijuana – even after command and medical supports had been afforded him –  was not demonstrative of the behavior consistent with an Honorable term of service.  Relief denied.

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 (DRUG ABUSE) with a corresponding separation code of HKK1, and the reentry code shall  RE-4B.  The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of the 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/.  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.