ex- LCpl, 

Current Discharge and Applicant’s Request

Application Received: 20210928
Characterization of Service Received:   
Narrative Reason for Discharge:   MISCONDUCT (DRUG ABUSE)
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:	 

Period of Service Under Review:
Date of Enlistment:  20161128	Age at Enlistment:  
Period of Enlistment:  5  Years   Extension
Date of Discharge:  20210427	Highest Rank/Rate:  Cpl
Length of Service:  04  Year(s)  05  Month(s)  00  Day(s)
Education Level:  12		AFQT:  61  
Deployment/Operation: 

Evaluation Marks (# of occasions):  Performance/Proficiency:  4.4 (NFIR)  Behavior/Conduct: 4.2 (NFIR)   
Fitness Reports: 

Awards and Decorations (per DD 214):	Rifle  GCM NDSM GWOTSM AFSM SSDR 

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

SCM: NONE  SPCM:  NONE  CIVIL ARREST:  NONE  CC:  NONE
 
NJP:  1

20201207:	Article 112a (Wrongful use, possession, manufacture or introduction of controlled substance) 
	Awarded:       Suspended:     

Retention Warning Counseling:  2

- 20201211:	For violation Article 112a based upon my wrongful use of a controlled substance THC.

- 20201211:	For Non-Judicial Punishment for Articles 112a of the UCMJ.

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 Manual 5420.1 of 29 September 2020 (Standards for the execution of the Naval Discharge Review Board).

DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

1.  The Applicant contends that he is deserving of an upgrade as his Commanding Officer recommended that he receive a
      General (Under Honorable Conditions) characterization.
2.  The Applicant states that a medical condition that was untreated during his tenure on active duty mitigates the misconduct 
      that contributed to his administrative separation. 
3.   The Applicant contends that his discharge is inequitable as it is unjust and too harsh in relation to the misconduct 
      committed.

Discussion

Date:  20220217		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 a mental health condition, including PTSD, TBI, or Military Sexual Trauma, and in accordance with 10 U.S.C. § 1553, the NDRB included a member who is a physician, clinical psychologist, or psychiatrist.  
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) 

:  The Applicant contends that he is deserving of an upgrade as his Commanding Officer recommended that he receive a
              General (Under Honorable Conditions) characterization. 

The Applicant states that his discharge is not equitable as his Commanding Officer recommended that he receive a General (Under Honorable Conditions) discharge characterization, but the Separation Authority (SA) awarded him an Under Other Than Honorable Conditions (UOTHC).  In the adjudication of the Applicant’s misconduct he signed an agreement to accept Non-Judicial Punishment vice be subject to a Special Court Martial in return for waiving his right to an administrative separation hearing. In doing this the Applicant also acknowledges the fact that he could ultimately receive an UOTHC as the lowest characterization he could be assigned. This agreement was signed with the support and consultation of assigned legal counsel thus the Applicant was never denied the opportunity of legal representation. While the Applicant’s Commanding Officer recommends that he receive a General discharge it is just that, a recommendation. Ultimately the final discharge is assigned by the SA and in this case he elected not to take the recommendation of the Commanding Officer, but rather assign an UOTHC. While the Applicant may view this as inequitable the NDRB did not identify any impropriety in the execution of the administrative separation nor a decision that was inconsistent with other matters similar in nature. Relief based on this issue is denied. 

Issue 2:  The Applicant states that a medical condition that was untreated during his tenure on active duty mitigates the 
               misconduct that contributed to his administrative separation.   

The Applicant states that he suffers from Attention Deficit Hyperactivity Disorder (ADHD) and it was his efforts to treat the symptoms and anxiety associated with this condition that led him to use marijuana in an effort to self-medicate. Identifying the behavioral reactions to conditions and circumstances the Applicant stated that the COVID pandemic as well as being stationed in Okinawa generated behavioral symptoms that he was trying to get under control. In response he “experimented” with marijuana as prescribed drugs were not available to him due to the fact he never disclosed he had ADHD as he believed it might disqualify him from service. The Applicant states within his package that he had long suffered from severe ADHD and that his condition existed prior to his service. In addition he states that he was prescribed medication to treat the condition  while he was growing up prior to joining the Marine Corps while under the care of a Doctor. Although the Applicant discusses this medical condition within his application he never disclosed it during the enlistment process and deliberately answered “No” to any of the medical screening questions that afford an Applicant the opportunity to present issues for the military to more robustly assess and make a service determination or issue a waiver. The record of evidence reflects the fact that the Applicant was not truthful during the enlistment process per his medical screening forms. This act substantiates a Fraudulent Enlistment on the part of the Applicant as he did not afford the Marine Corps the opportunity to accurately and fairly assess his ability to effectively serve. Fraudulent Enlistment is grounds for separation itself. 

The Applicant also states that he used marijuana on several occasions as he was “experimenting” with it. Military Service members are not authorized to seek medical treatment outside of the military medical system without approval nor are they permitted to determine means to self-medicate using banned and illegal substances that substantiate violations of the service drug policy. Given this information the NDRB did not identify any reason for mitigation to the misconduct due to an underlying medical condition. The Applicant’s actions and decisions during the enlistment process along with his decision to use marijuana reflect selfish acts lacking integrity. The NDRB was not capable of establishing a nexus to the Applicant’s cited medical issues and this behavior. Withholding information and establishing personal standards of conduct and performance not congruent with that of the institution is unacceptable conduct that led to the misconduct and the Applicant’s administrative separation. Relief is denied. 

Issue 3:  The Applicant contends that his discharge is inequitable as it is unjust and too harsh in relation to the misconduct 
               committed.   

The Applicant states that his misconduct does not warrant the discharge characterization assigned. He believes the discharge characterization is unjust and too harsh given the nature of his offense, the growing acceptance of marijuana and when assessed against his complete service record. The Applicant used marijuana in an effort to find relief from the discomfort and anxiety created by his ADHD while he was stationed in Okinawa, Japan. The Applicant states that he used marijuana on more than one occasion as he “experimented” with it. Marijuana is not only a banned substance in the Marine Corps, but possession and use is illegal in Okinawa, Japan. Thus not only was his decision to use marijuana in violation of a service drug policy, but it was also a violation of a law of within a country to which he served as a representative of the United States military. His procurement of  drugs reflects support of criminal activity and usage on more than one occasion eliminates any reflection of the misconduct as an isolated incident. These issues are accounted for in the assignment of the discharge characterization and the significant departure of conduct that threatens good order and discipline and the reputable character of the Marine Corps. Relief is denied.   

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 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 the Applicant’s conduct to constitute significant departures from the standards of conduct expected of the Naval Service. In making its determination, the Board considered the fact that the Applicant intentionally withheld information during the enlistment process in order to facilitate his personal screening; continued to actively withhold a medical condition to which he now attributes to the cause of his misconduct; and that he consciously and knowingly purchased illegal drugs and used drugs on multiple occasions knowing he was in violation of the service drug policy and the laws of the country that he was in. These significant acts of misconduct could not be mitigated with the information provided by the Applicant, the letters of reference or his performance record as his misconduct was ultimately sustained and committed throughout his tenure on active duty. 

The NDRB recognizes that serving in the all-volunteer Armed Forces is challenging but reflects a commitment to our Nation; thus, service members deserve to be recognized upon completion of their service.  One of the ways in which our service members are recognized is through the determination of their characterization of service.  Most servicemembers, however, serve honorably and therefore earn their Honorable discharges.  In fairness to those Marines and Sailors who served honorably, Commanders and Separation Authorities are tasked to ensure that undeserving servicemembers receive no higher characterization than is due.  The NDRB found the characterization of the Applicant’s discharge was equitable and consistent with the characterization of discharge given others in similar circumstances.

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 (DRUG ABUSE) with a corresponding separation code of HKK, 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

Additional NDRB Reviews: After receiving a NDRB Document Review, an Applicant remains eligible for a Personal Appearance/Telephonic Hearing if the application is received by the NDRB within 15 years of the Applicant’s date of discharge.  The Applicant can provide documentation to support any claim(s) related to their discharge as well as evidence of post-service accomplishments.  Representation at a personal appearance hearing by an Attorney (or Advocate) 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.  However, if you have been discharged for more than 15 years, already had a personal appearance hearing, or otherwise exhausted your opportunity to be heard by 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.

Appeal Procedures on NDRB Decision: If you contest the NDRB’s decision in your case AND you already contested the NDRB’s previous decision at a Personal Appearance Hearing or otherwise exhausted your opportunity before the NDRB (or it has been more than 15 years since your discharge), 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.  The BCNR is the highest level of administrative review within the Department of the Navy/Marine Corps to correct errors or injustices to member’s records.

Complaint Procedures on Format: If you believe the decision in your case is ambiguous, 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 (JSRA), OUSD (P&R) PI-LP, The Pentagon, Washington, DC  20301-4000.  You should read Enclosure (5) of the DoD Instruction 1332.28 before submitting such a complaint.  This complaint procedure does not permit a challenge on the merits of the NDRB’s decision; the JSRA is designed solely to ensure that the NDRB decisional documents meet applicable requirements for clarity and responsiveness.  Therefore, if you are contesting the merits of the NDRB’s decision and already had a NDRB personal appearance hearing or otherwise exhausted your opportunities before the NDRB, the Applicant may appeal/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 [VA] Benefits: The U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB.  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, equity, and clemency of a discharge.  Consequently, the Applicant should petition the VA, which determines eligibility for post-service benefits.  The VA conducts its own determination of eligibility based on service records and input from an Applicant upon their request.  Therefore, if the NDRB grants a change to a discharge, the NDRB will notify the Commander, Navy Personnel Command or Commandant of the Marine Corps that the DD 214 be corrected as appropriate; however, it is the Applicant’s responsibility to ensure these changes are incorporated into the record by the respective Service Headquarters.  Further, it is the Applicant’s sole responsibility to submit these changes to the VA for a determination of eligibility for VA Benefits.  Finally, the Applicant should refer to the Veterans Administration website (https://www.va.gov/) for information regarding VA benefits and healthcare.  Additionally, to find the nearest VA office to receive assistance with determining VA eligibility/access, the Applicant should refer to https://www.va.gov/find-locations.

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.  If the Applicant’s claim of PTSD/TBI was based in whole or in part on sexual trauma, intimate partner violence, or spousal abuse, the NDRB obtained a review by a psychiatrist, psychologist, or social worker with training on mental health issues associated with PTSD/TBI or other trauma.  

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 that 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.