ex- PVT, 

Current Discharge and Applicant’s Request

Application Received: 20170110
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: REQUESTED, BUT NOT SPECIFIED

Summary of Service

Prior Creditable Service:
Inactive:	 	             	Active:	 

Period of Service Under Review:
Date of Enlistment:  20020604	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20050214	Highest Rank/Rate:  Cpl
Length of Service:   Year(s)     Month(s)   06 Day(s)
Education Level:  	AFQT:  47

Evaluation Marks (# of occasions):  Performance/Proficiency: 4.5 (4)   Behavior/Conduct: 4.5 (4)  
Fitness Reports: 

Awards and Decorations (per DD 214):	Rifle  Pistol  CAR GWOTSM GWOTEM SSDR NDSM PUC-N  

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

NJP:  

- 20041013:	Article 92 (Failure to obey order, regulation) 2 specifications
	Specification 1: Admitted to drinking alcohol while attending Alcohol Treatment Facility (ATF)
	Specification 1: Admitted to getting drunk while on Conditions of Liberty while at Alcohol Treatment Facility (ATF)   
	Awarded:       Suspended:      

SCM:  

SPCM:  

- 20041019:	Article 112a (Wrongful use, possession, manufacture or introduction of controlled substance) 
	Sentence:   CONF 75 days (20041019-20041219, 62 days) 
	CA: Sentence is approved and will be executed, but the execution of that part of the sentence extending to all confinement in excess of 30 days is suspended for a period of 12 months from the date of this action, at which time, unless sooner vacated, the suspended portion will be remitted without further action.  Suspension of confinement in excess of 30 days was rescinded, the full confinement period was ordered executed.     

CIVIL ARREST:    CC:      Retention Warning Counseling:  

NDRB Documentary Review Conducted (date):	20110908
NDRB Documentary Review Docket Number:	MD11-01200
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:	J. Malcom Massey
	Witness E-2:			Witness C-2:

Pertinent Regulation/Law

A.  The Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 1 September 2001 until 5 June 2007, 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 his discharge was inequitably based on an isolated incident in 26 months of service.
2.	The Applicant contends his misconduct was a result of his untreated PTSD.

Discussion

Date:  20180313		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 January to June 2003 in support of Operation IRAQI FREEDOM.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  

The Applicant's record of service included:

  for  of the Uniform Code of Military Justice (UCMJ): 
Article 92 (Failure to obey order, regulation) 

  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 based on the Article 112a violation.  When notified of administrative separation processing, the Applicant  his right to consult with a qualified counsel, and waived his rights to submit a written statement and request an Administrative Separation Board.   

:  The Applicant contends his discharge was inequitably based on an isolated incident of cocaine use in 26 months of service.  However, his service record indicates his cocaine use was not his only misconduct; he went to NJP in October 2004 after he violated an order to abstain from alcohol while attending an alcohol treatment program.  While the Board recognizes that this misconduct is relatively minor, particularly given it occurred on liberty and considering that a servicemember needing to attend alcohol treatment may have significant difficulty following such an order, it remains an Article 92 violation and another event displaying misconduct.  Moreover, certain serious offenses warrant separation from the Naval Service to maintain proper order and discipline.  Violation of Article 112a – in this case, the Applicant’s cocaine use – is one such offense requiring mandatory processing for administrative separation regardless of grade or time in service.  The NDRB found no inequity in the characterization of the Applicant’s discharge based on this issue; relief denied.

:  The Applicant contends his discharge was inequitable because mitigation relevant to his combat trauma and subsequent PTSD was not applied.  The Applicant reports he was inspired to enlist in the Marine Corps following the September 11, 2001 attacks.  However, he had briefly experimented with marijuana in high school which required a waiver.  He denies ever using other drugs prior to service.  He reports a DUI in 1999 but denies heavy alcohol consumption prior to service.

The Applicant progressed through Boot Camp, MCT, and Tank School without incident and was meritoriously promoted to Lance Corporal.  He reported to 2d Tank Battalion in December 2002, deployed to Kuwait a month later, and was among the early units to cross into Iraq in March 2003.  He reports being very excited for this deployment; it was the reason he elected to serve.  He recalls being awake for over 48 hours during the initial entry into Iraq and of destroying one of the waiting tanks.  He further described other haunting memories, such as another Marine killed by friendly fire and a tank driving off a bridge.  He particularly remembers being frightened after a SCUD missile attack in which there was a concern for chemical weapons; as the junior member present, he was required to remove his gas mask first in case agent remained active.  The Applicant’s father (C-1) provided witness testimony that the first time he heard from his son by phone during deployment was just after that event. 

The Applicant returned from deployment in June 2003 and reports a two-week stand-down period during which the people in his unit were quarantined in the barracks and drank copiously; he reports that some of the more senior members used marijuana and other drugs but the newer members were not included.  His Post-Deployment Health Assessment was performed in May 2003, before leaving theatre; it indicated his exposure to combat, his experiences with witnessing death and injury in others, and his feelings of having been in danger.  It noted that he was experiencing nightmares.  He was not referred for any further evaluation and no Post-Deployment Re-Assessment was later done; now re-assessments are routinely performed three months after return from theatre to better gauge the presence of symptoms once returned stateside.

The Applicant received 4.8/4.8 proficiency and conduct scores for the period during his deployment and was subsequently promoted to Corporal.  He married later that summer and had a baby within the year, both of whom he moved back to Alabama in May 2004 as he left for the field for pre-deployment training.  It was a few weeks into this training, in June 2004, that a serious head injury occurred to the loader of his tank, LCpl P., causing permanent brain damage.  An NCIS investigation did not find Applicant or the equipment to be at fault.  Approximately two days after the injury, half of the platoon was granted liberty to shower, do laundry, etc.  Applicant reports he immediately began to drink by himself, then went into town and continued drinking at a bar where he was introduced to cocaine and used it; he is unclear on exactly why he made that fateful decision, but denies that he was trying to get out of another deployment.  He reported back to the range as scheduled and a day later, the entire unit was tested for drugs; his urinalysis was positive for metabolites of cocaine.  He was referred to a substance abuse counselor where he was diagnosed with alcohol abuse and recommended for intensive outpatient treatment.  He was referred to Special Courts-Martial.  He was not screened by mental health.  He did seek out medical care for his insomnia prior to leaving the service but other symptoms of PTSD were not addressed by the provider.

Subsequent to his time with the Marines, Applicant has had difficulty keeping his life on track.  He attempted multiple jobs, none of which lasted much more than a year.  He struggled with opioid dependency for a few years following back-to-back shoulder surgeries in 2007; he has been narcotic-free since 2010.  He has been sober of all alcohol use since 2013.  He was diagnosed and treated briefly with both counseling and medications for PTSD in 2010 but his care terminated when he divorced and lost his health insurance that he had through his wife’s work.  A re-evaluation in 2016 found he still suffered from PTSD, as well as depression and anxiety, and chronic medication management and intensive psychotherapy was recommended; he currently is treated with an anxiolytic prescribed by his general practitioner to assist with sleep.  The Applicant was visibly jittery and nervous throughout the duration of his hearing, well beyond the typical nerves noted in most applicants.  C-1 presented testimony about the substantial emotional and financial support he has provided to the Applicant through the years.  He attempted to assist Applicant with obtaining care with the Veterans’ Administration (VA), but healthcare benefits were declined due to the characterization of discharge.

With consideration of all the above aspects of this case – particularly the pre-existing vulnerability to alcohol abuse; his combat action; subsequent lack of sufficient post-deployment screening for PTSD; the implicit endorsement of alcohol and drug use with the post-deployment stand down period; the acutely traumatic event involving his tank crewmate immediately prior to his misconduct; and his post-service diagnosis of PTSD, the NDRB, granting liberal consideration, found the Applicant’s discharge characterization should change to General (Under Honorable Conditions); however, his narrative reason for separation shall remain Misconduct.

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-4B.  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.