ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20110203
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)	20050726 - 20060411  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  20060412	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20080211	Highest Rank:  
Length of Service:    Year(s)    Month(s)  00  Day(s)
Education Level:  	AFQT:  41
MOS:  0311
Proficiency/Conduct Marks (# of occasions):   () /  ()	Fitness Reports:  

Awards and Decorations (per DD 214):	Rifle     

Periods of UA/CONF:  

NJP:  

- 20060829:	Article  (Create a substantial risk of death or bodily harm to another Marine by falling asleep with a loaded weapon)
	Awarded:    Suspended:   for 1 month

- 20070616:	Article 113 (Sleeping on post), 2 specifications of sleeping on post while aboard Combat Out-Post NORSEMAN, Al-Anbar, Iraq.
	Article  (Failure to obey orders and regulations)
	Article 134 (Loitering/wrongfully sitting on post)
	Awarded:     Suspended:  

SCM:  	SPCM:  	CC:  

Retention Warning Counseling:  2

- 20060823:	For failure to follow an order or regulation; specifically, falling asleep on post with a loaded weapon at 2000 hrs on 20060819.

- 20070614:	For being found sleeping on post by the Corporal of the Guard.  This complete disregard for your assigned sector betrays the trust and confidence the Marines of the Task Force place in the Force Protection Platoon during their bivouac status.

Administrative Corrections to the Applicant’s DD 214

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

	  “UNDER OTHER THAN HONORABLE CONDITIONS”

The NDRB will recommend to the Commandant of the Marine Corps that the DD 214 be corrected as appropriate.

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:		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:	

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.	Nondecisional issues: The Applicant seeks access to Department of Veterans Affairs benefits provided to service members who have served honorably.
 
2.	Decisional issues: The Applicant contends that his misconduct of record was very much a part of his depression and as such, the characterization of his service at discharge was inequitable.  

Decision

Date:  20110602		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 NDRB 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 Applicant identified one decisional issue to the NDRB.  The NDRB completed a thorough review of the circumstances that led to the Applicant’s discharge, and the discharge process, to ensure the discharge met the pertinent standards of equity and propriety.

The Applicant entered active duty military service at age 18 on a four-year contract with a guarantee of Infantry training.  He entered the service with waiver to enlistment conditions or standards for pre-service illegal drug use - marijuana.  The Applicant’s record of military service documents that he is a combat veteran, deploying to a designated combat zone, and conducting combat operations in the Al-Anbar province of Iraq in support of Operation IRAQI FREEDOM from March to September 2007.

The Applicant’s record of service documents two retention-counseling warnings and two nonjudicial punishments for numerous violations of the Uniform Code of Military Justice (UCMJ), specifically: Article 92 (Failure to obey order or regulation - 2 specifications), Article 113 (Sleeping on post as a sentry in a combat zone (Iraq) - 2 specifications), and Article 134 (Loitering or wrongfully sitting on post).  Based on the established pattern of misconduct and the individual offenses committed by the Applicant, his command recommended that he be administratively processed for separation.  When notified of administrative separation processing using the administrative board notification procedure, the Applicant elected to waive his right to consult with a qualified legal counsel and submit a written statement to the separation authority, and did not request a hearing before an administrative board.

Nondecisional Issues:  The Applicant seeks access to Department of Veterans Affairs benefits provided to service members who have served honorably.  There is no requirement, or law, that grants re-characterization solely on the issue of obtaining veterans benefits.  As such, this issue does not serve to provide a foundation upon which the NDRB can grant relief.  Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities.  Regulations limit the NDRB’s review solely to a determination of the propriety and the equity of a discharge.  The Applicant is directed to the Addendum: specifically, the paragraph regarding the Department of Veterans Affairs, who determines eligibility for post-service benefits, not the NDRB.  The VA conducts its own determination of eligibility based on service records and input from an Applicant upon their request.  The Applicant should refer to the Veterans Administration website (http://www1.va.gov/opa/Is1/1.asp) for additional assistance.

(Decisional Issue) (Propriety/) .  The Applicant contends that his misconduct of record was very much a part of his in-service depression and as such, the characterization of his service at discharge was inequitable.  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 the standards of discipline of the Naval Service.  The NDRB completed a thorough review of the Applicant’s issues and the discharge process and determined that the discharge met the pertinent standard of propriety in accordance with paragraph 6210.3 of the Marine Corps Separation and Retirement Manual (MARCORSEPMAN) – Misconduct (Pattern of Misconduct).  The Applicant’s record reflected misconduct, followed by a proper retention counseling warning, which he subsequently violated as evidenced by the nonjudicial punishment of record.  These actions established a pattern of misconduct that warranted consideration for administrative separation.  The Applicant’s service record reflects that he was advised properly on the separation recommendation by his chain of command; he was afforded the opportunity to exercise his rights and acknowledged all such in writing.  The Separation Authority reviewed the evidence of record and determined that a preponderance of the evidence satisfied the requirements as outlined in the applicable regulation; accordingly, he directed the Applicant be discharged.  The NDRB determined that the evidence of record did establish the basis for discharge and that the actions were proper.  Accordingly, relief based on propriety is not warranted.

The NDRB conducted a thorough review of the Applicant’s combat deployment history and the timing and the circumstances involved in the Applicant’s incidents of misconduct, coupled with the Applicant’s in-service and post-service mental health evaluations by appropriately credentialed mental health care providers.  Since discharge, the Applicant has been treated for mental health concerns through the VA; he has been diagnosed with a mild form of Post-Traumatic Stress Disorder (PTSD).  Additionally, medical evaluations contained in his service record indicate a history of sleep issues that existed prior to entry, but lack any official diagnostic evaluation or determination of disorder.  The NDRB reviewed both of these medical issues in light of the Applicant’s misconduct for possible mitigation factors.  The Applicant’s service record documents that his misconduct precedes his combat deployment and development of PTSD symptoms.  Moreover, there is no documentation that the Applicant suffers from any disqualifying sleep disorder.

In accordance with the MARCORSEPMAN, an Honorable characterization of service is warranted when the quality of a member’s service generally meets the standards of acceptable conduct and performance for Naval personnel, or is otherwise so meritorious that any other characterization of service would be clearly inappropriate.  An Under Other Than Honorable Conditions characterization of service at 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.   

After a thorough review of the facts and circumstances unique to this case, the NDRB discerned no inequity in the discharge characterization of the Applicant’s service.  Based on the Applicant’s documentation and his official service and medical records, coupled with the facts and circumstances unique to this case, the NDRB determined that relief was not warranted.  The Applicant engaged in conduct involving one or more acts or omissions that constituted a significant departure from the conduct expected of members of the Naval Service.  As such, the NDRB determined that an upgrade in the Applicant’s characterization of service at discharge was not appropriate and not warranted.  Furthermore, the NDRB determined that the narrative reason for separation was proper as issued and accurately reflected the Applicant’s reason for separation; therefore, it shall remain Misconduct.  

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service,  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 his discharge.  The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews 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