ex- LCpl, 

Current Discharge and Applicant’s Request

Application Received: 20171113
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:	 19980811 - 20020628  

Period of Service Under Review:
Date of Enlistment:  20020629	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20021120	Highest Rank/Rate:  Sgt
Length of Service:   Year(s)     Month(s)   22 Day(s)
Education Level:  	AFQT:  56
Fitness Reports: 

Awards and Decorations (per DD 214):	NDSM NUC (2) MM CoC (4) LoA (2) 

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

SCM:    SPCM:     CIVIL ARREST:     CC:  

NJP:  

- 20020827:	Article 112a (Wrongful use, possession, manufacture or introduction of controlled substance) 
	Awarded:       Suspended:      

- 20020917:	Article 112a (Wrongful use, possession, manufacture or introduction of controlled substance) 
	Awarded:       Suspended:      

Counseling Warning:  

- 20020923:	For illegal drug involvement, cocaine usage on 20020812, as identified through urinalysis, and confirmed by NavDrugLab Great Lakes, IL msg #211905z AUG 02.   

Retention Warning Counseling:  

- 20020923:	For illegal drug involvement, cocaine usage on 20020905, as identified through urinalysis, and confirmed by NavDrugLab Great Lakes, IL msg #111530z SEP 02.   

NDRB Documentary Review Conducted (date):	20080421
NDRB Documentary Review Docket Number:	MD08-00253
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:

	      “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 980811 UNTIL 020628”
	
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 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 Post Traumatic Stress Disorder and a Mental Health condition were mitigating factors in his misconduct.
2.	The Applicant contends his discharge was improper because he was not evaluated for a Mental Health condition prior to separation.
3.    The Applicant contends his discharge was improper because he was not evaluated and treated for drugs and alcohol abuse prior to separation.
4.    The Applicant contends his discharge was unjust because his recruiter forced him into a drug waiver and this had a negative impact on his NJP.
5.    The Applicant contends his in-service and post-service conduct and achievement warrants consideration for an upgrade.

Discussion

Date:  20190214		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 a mental health condition, including PTSD, TBI, or Military Sexual Trauma potentially contributed to the circumstances resulting in the discharge of a lesser characterization.  A review of the record revealed that the Applicant did not deploy in support of a contingency operation, and so this case did not warrant an expedited review in accordance with § 1553.

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) 

Article 112a (Wrongful use, possession, manufacture or introduction of controlled substance)

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

:  The Applicant contends his Post Traumatic Stress Disorder (PTSD) and a Mental Health condition were mitigating factors in his misconduct.  In determining discharge characterization of service, the Applicant’s conduct forms the primary basis for consideration.  The Applicant’s in-service conduct included two NJPs for violations of Article 112a.  Specifically, the Applicant wrongfully used cocaine on two separate occasions and this demonstrates a willful failure to meet the requirements of his contract honorably.  However, the Applicant contends his PTSD and a Mental Health condition were mitigating factors in his misconduct.  The Applicant’s official military service and medical record provide no evidence of PTSD or a Mental Health condition.  The Applicant provided evidence of psychological evaluation and treatment from care that he had received in 2015 and continues to receive today.  A civilian licensed psychologist diagnosed the Applicant with PTSD, Intermittent Explosive Disorder, and Adjustment Disorder with mixed disturbance of emotions and conduct.  In testimony provided by the Applicant, he attributes his PTSD and Mental Health diagnosis to family abuse and neglect as a child, his sister was abused as a child, a difficult childhood, and thoughts of a personal car accident.  Additionally, in the Applicant’s testimony he stated that at the time of his cocaine usage, he recently broke up with his girlfriend of six years and was depressed, and he had been drinking alcohol while taking a prescribed pain-killer.  The Applicant further stated these factors as well may have been a contributing factor in his wrongful usage of cocaine.
  
At the time of the cocaine usage, the Applicant was a Sergeant in the Marine Corps who recently re-enlisted and had an above-average career to this point.  In testimony, the Applicant stated he takes full responsibility for his actions and knew at the time, ingesting cocaine on multiple occasions was wrong.  Given the unique circumstances of this individual case and the Applicant’s post-service PTSD and Mental Health diagnosis, the NDRB determined that his post-service diagnosis does not provide sufficient mitigation for his misconduct and his misconduct were found to be conscious decisions to violate the tenants of honorable and faithful service.  Relief denied.   

:  The Applicant contends his discharge was improper because he was not evaluated for a Mental Health condition prior to separation.  And, the Applicant contends his discharge was improper because he was not evaluated and treated for drugs and alcohol abuse prior to separation.

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.  There is insufficient evidence in the record, nor has the Applicant produced any evidence, to support the contention that he was not sufficiently screened for a metal health condition, and drug or alcohol abuse.  In the Applicant’s testimony, he stated that he recalled being seen by a Substance Abuse Control Officer following his drug use and prior to separation.   The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.  Furthermore, all service members who are separated for drug abuse are screened for drug dependency and provided the option of treatment prior to separation.  Additionally, all service members who are involuntarily separated from service are evaluated by a medical provider prior to separation.

The NDRB found the evidence of record does not indicate that a proper authority erred by not initiating a psychological evaluation or by not further referring the Applicant to a substance abuse program prior to separation.  Therefore, the NDRB found the Applicant’s issue to be without merit.

:  The Applicant contends his discharge was unjust because his recruiter forced him into a drug waiver and this had a negative impact on his NJP.  To support this contention, the Applicant testified that he had smoked marijuana a few times prior to separation and this is further evidenced in his Military Entrance Processing Station documentation.  The NDRB noted no waiver was required for entry into service based on this pre-service admission.  Further, the Applicant contends this information was raised by his Commanding Officer at NJP and may have influenced the adjudication of guilt and punishment.

The NDRB did not find substantive evidence that the Applicant’s pre-service drug use had any bearing on either of his NJPs.  The Applicant was found guilty of two separate Article 112a offenses and the Commanding Officer who ordered the NJPs was permitted to consider any and all direct and circumstantial evidence that was presented in his official military record.  Therefore, the NDRB found the Applicant’s issue to be without merit.

:  The Applicant contends his in-service and post-service conduct and achievement warrants consideration for an upgrade.  In support of this issue, the NDRB noted the Applicant was subject to many recognition and meritorious promotion boards, received above average proficiency and conduct markings, was selected to special duty assignment, volunteered off duty hours in support of the Marine Corps, was a Marine Corps Martial Art Program instructor, and received many positive character statements during his Administrative Separation Board proceedings.  Additionally, the Applicant provided evidence of post-service employment, continuing college education, volunteerism, financial stability, family and personal stability, a civilian record of negative drug screening, and a civilian criminal history which does not contain significant misconduct. 

The NDRB is authorized to consider in-service and post-service factors in the re-characterization of a discharge.  However, there is no law, or regulation, that provides that an unfavorable discharge may be upgraded based solely on positive aspects of in-service conduct, the passage of time, or good conduct in civilian life subsequent to leaving the service.  Normally, to permit relief, a procedural impropriety or inequity must have been found to exist during the period of enlistment in question.  In-service and 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 this 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.  Given the unique circumstances and facts of this case, the Board determined the awarded characterization of service shall remain Under Other Than Honorable Conditions.  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  UNDER OTHER THAN HONORABLE CONDITIONS, the narrative reason for separation shall  MISCONDUCT with a corresponding separation code of GKK1, 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: 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.