ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20091215
Characterization of Service Received:    
Narrative Reason for Discharge:    
Authority for Discharge:   MARCORSEPMAN 

Applicant’s Request:	Characterization change to:  
	Narrative Reason change to:  

Summary of Service

Prior Service:
Inactive:	USMCR (DEP)	20050127 - 20050320  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  20050321	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20090129	Highest Rank:  
Length of Service:    Year(s)    Month(s) 09  Day(s)
Education Level:  	AFQT:  64
MOS:  3521
Proficiency/Conduct Marks (# of occasions):   () /  ()	Fitness Reports:  

Awards and Decorations (per DD 214):	Rifle    WITH BRONZE STAR   MM

Periods of CONF:  

NJP:  
- 20061020:	Article  (Disrespectful in language), 2 specifications
	Specification 1: To a Cpl
	Specification 2:  To a Sgt
	Article 86 (UA - failed to go to appointed place of duty - SARP screening appointment)
	Awarded:    Suspended:  

- 20070405:	Article  (Disrespectful in language and deportment)
	Awarded:    Suspended:  

- 20080605:	Article  (Insubordinate conduct toward warrant officer, noncommissioned officer or petty officer)
	Awarded:    Suspended:   ($208.00)

SCM:  

SPCM:  

CC:  

Retention Warning Counseling:  
- 20060602:	For violation of Article 91.3 - Disrespect towards a non-commissioned officer.  Specifically, on or about 20060531, you did verbally disrespect a Sgt and a Cpl of Marines during a counseling session by making vulgar remarks and throwing a chair.  This type of behavior is not expected nor will it be tolerated. 

- 20060816:	For being found guilty at NJP for violation of Articles 86 - Unauthorized absence and 91 –Disrespect (Insubordinate conduct toward a noncommissioned officer).

- 20080605:	For pattern of misconduct on 20061020 you received Company NJP for violation of Article 91 (2 specifications) for disrespect towards a noncommissioned officer, which you were found guilty, on 20070405 you received NJP for violation of Article 91 for disrespect towards two noncommissioned officers, which you were found guilty and on 20080605 you received NJP for violation of Article 91 for failing to obey an order from a staff noncommissioned officer, which you were found guilty.

- 20080717:	For your recommendation for administrative separation for a pattern of misconduct and physical condition and not a disability.  On 20061020 you received NJP, which you were found guilty, on 20070405 you received NJP, which you were found guilty, and on 20080605 you received NJP, which you were found guilty.  Between 20080508 to the present you have been on light duty for a total of 87 days for chronic middle back pain, which you were treated by a chiropractor and still you are unable to complete necessary activities. 

Types of Documents Submitted/reviewed

Related to Military Service: 
		DD 214:		Service/Medical Record:		Other Records:	

Related to Post-Service Period:	
	Employment:		Finances:		Education/Training:	
	Health/Medical Records:		Substance Abuse:		Criminal Records:	
	Family/Personal Status: 		Community Service:		References:	
	Additional Statements:
		From Applicant:		From Representation:		From Congress member:	
	Other Documentation:	

Pertinent Regulation/Law

A.  Paragraph 6210, MISCONDUCT, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 
1 September 2001 until Present.

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs, Part V, Para 502, Propriety and Para 503, Equity.

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

Applicant’s Issues

1.  The Applicant seeks employment and educational benefits.	
2.  The Applicant claims his misconduct was due to PTSD and depression.  

Decision

Date:  20100331                    Location: Washington D.C.          Representation: 

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  .

Discussion

The 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 did complete a thorough review of the circumstances which led to  discharge and the discharge process to ensure  discharge met the pertinent standards of equity and propriety.  The Applicant’s record of service included  6105 counseling warnings and   for  of the Uniform Code of Military Justice (UCMJ): Article 86 (Unauthorized absence – failure to go) and Article 91 (Insubordinate conduct toward a noncommissioned officer and was disrespectful in language and deportment - 3 specifications).  Based on the offenses committed by the Applicant,  command administratively processed  for separation.  When notified of administrative separation processing using the  procedure, the Applicant waived  rights to consult with a qualified counsel and to submit a written statement for consideration by the separating authority; but did exercise his right to request an administrative board.  At the administrative separation board (ASB), by a unanimous vote (3-0), they determined that the preponderance of evidence supported the act or omissions, that the Applicant should be separated from the Marine Corps and that his characterization of service should be Under Other Than Honorable Conditions.  Although the separating authority agreed with the ASB’s findings and recommendations, he disapproved the characterization and directed the Applicant be discharged with a General (Under Honorable Conditions).  

:  (Nondecisional) The Applicant seeks employment and educational benefits.  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.

:  (Decisional) ()  .  The Applicant contends his misconduct was due to Post-Traumatic Stress Disorder (PTSD) and depression.  After reviewing the Applicant medical records, he was seen by mental health staff (Division Psychiatrist) and was diagnosed with a borderline personality disorder and adjustment disorder as early as September 2006.  The Applicant was treated with medication and additional counseling and was deemed fit for full duty.  The Applicant conducted a successful tour to Iraq from August 2007 to March 2008.  Upon return from his deployment, the applicant was again seen by psychologists due to stressors involving his marriage and financial issues.  On 11 June 2008, the Division Psychiatrist recommended a routine administrative separation.  To this point, the Applicant had received 3 NJP’s (last one received 5 June 2008) and 3 retention counseling’s.  Thus the command chose to separate the Applicant due to a pattern of misconduct.  The report that recommended a separation specifically stated that no objective evidence has been found to support the diagnosis of PTSD or Traumatic Brain Injury (TBI).  The NDRB determined that the Applicant’s mental health issues were due to issues prior to the Marine Corps and/or martial and financial problems during his enlistment.  

Additionally, the Applicant stated he also suffered from back problems and it was never addressed while on active duty. He was seen and treated for his back problem on numerous occasions per his medical records, to include being on limited duty.  Therefore, the NDRB opined that Applicant’s claim of PTSD is not supported by the evidence and although he did suffer from depression, he was responsible for his actions.  The NDRB determined that the Applicant’s discharge by the command was proper and warranted.  Relief denied.   

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service, medical and  record entries, and discharge process, the Board found   Therefore, the awarded characterization of service shall   and the narrative reason for separation shall remain .  The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of  discharge.  The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews, Employment/Educational Opportunities and Post-Service Conduct.

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.”

Additional Reviews:  After a document review has been conducted, former members are eligible for a personal appearance 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), 2 Navy Annex, Washington, DC 20370-5100 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:  Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to change a reenlistment code.  Only the BCNR can make changes to reenlistment codes.  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-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