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USMC | DRB | 2006_Marine | MD0601227
Original file (MD0601227.rtf) Auto-classification: Denied

ex-, USMC
MD06-01227
Current Discharge and Applicant’s Request:

 Application Received:                               20 060921
         Characterization of Service:             
         Basis for Discharge :                      
         Discharge Authority :                       MARCORSEPMAN PAR 6210.3
         Duty Assignment/ Command at Discharge:    3RDBN 4THMAR 1STMARDIV 29 PALMS CA MCC V34

Applicant’s Request:
          Characterization change to:              
         Narrative Reason change to:              
         Review Requested:                         
Representation:                                            
        
Applicant’s i ssues :
1. Veteran’s Administration benefits.
2. In Service - Equity

Decision:

 By a vote of the Characterization shall .     
By a vote of the Basis for Discharge shall .
Date of Decision:                                            20 070816
Location of Board:                                  Washington D.C.
Complete Service Record:                                   
Complete Medical Record:                          
Complete Discharge Package:                       

Regarding propriety, the Board found the discharge:     
Regarding equity, the Board found the discharge:        

Discussion

Issue 1: The Board determined that this issue is not and issue which can form the basis for relief for the Applicant or that the Board did not have the authority to grant the relief for which the applicant petitioned. The Applicant is directed to the Addendum regarding .

Issue 2 ( ). When a Marine ’ s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions. Characterization of service as general (under honorable conditions) is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record. The Applicant ’ s service was marred by the award of nonjudicial punishment (NJP) on one occasion for violations of the Uniform Code of Military Justice (UCMJ). The Applicant ’ s misconduct included unauthorized absence of more than 29 days. (Violation of UCMJ Article (86, unauthorized absence of more than 29 days) is considered a serious offense for which a punitive discharge is authorized if adjudged by a Special or General Courts Martial. The Applicant ’ s conduct, which form the primary basis for determining the character of his service, reflect his misconduct, and fall below that required for an honorable characterization of service. An upgrade to honorable would be inappropriate.



In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Service Record Entries, Medical Record Entries, Elements of Discharge and evidence submitted by the Applicant, the Board found the Applicant’s discharge proper and equitable.
Summary of Service:

Prior Service:
 Inactive: USMCR (DEP)                               20021025 - 20030407
Active:                                             

Period of Service Under Review:
 Date of Enlistment:                                 20030408
Years Contracted :                                   ; Extension:
Date of Discharge:                                  20051018
Length of Service
          Active:                                      02 Yrs 01 Mths 15 D ys (does not exclude lost time)
          Inactive:                                            00 Yrs 05 Mths 13 Dys
        
Time Lost During This Period:                      143 Days
UA:                                                  14 3 Days
Confinement:                                        
        
Education Level:                                   
Age at this Enlistment:                                    
AFQT:                                                 32
MOS:                                                  0331
Highest Rank:                                       
Proficiency/Conduct marks (# of occasions):               N/A / N/A )
Fitness reports available for review?            

Awards and Decorations (as listed on the DD Form 214): COMBAT ACTION RIBBON, GLOBAL WAR ON TERRORISM EXPEDITIONARY MEDAL, SEA SERVICE DEPLOYMENT RIBBON, NATIONAL DEFENSE SERVICE MEDAL, RIFLE EXPERT BADGE

Service Record Entries Related to Characterization of Service or Basis for Discharge

 20031209 :        NJP for violation(s) of UCMJ:
         Article 86 : Was UA at 3dBn, 4thMar on or about 1100, 031207 .
         Award: Forfeiture of $ 3 0 1 .00 for 1 month (suspended for 6 months) , restriction and extra duty for 14 days.
         Not appealed.
20031209:        Counseling: Advised of deficiencies in performance and conduct (Misconduct; violation of Article 86 in that you were in an unauthorized absence status from 0630, 20031204 to 1059, 20031207.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
20040830:        Counseling: Advised of deficiencies in performance and conduct (Misconduct, violation of Article 86 in that on 20040829, you were two hours late checking in off leave. Your excuse was you were driving the wrong way on the interstate for 55 miles.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
2005030 6 :        Applied Psychological Services, INC .
         Diagnosis:
         AXIS I: Post traumatic Stress Disorder (DSM IV 309.81).
         AXIS II: N egativistic (Passive-Aggressive) Personality Disorder (DSM IV 301.90) .
         AXIS III: None.
         AXIS IV: Military Service, active duty in a combat zone (Iraq) .
         AXIS V: Current GAF 41.

20050329 :        Charges preferred for violation of the Uniform Code of Military Justice (UCMJ) Article 86: Did on or about 20041005, without authority, absent himself from his unit, to wit: 3d Battalion, 4 th Marines, Marines Corps Air Ground Combat Center, located at Twenty Nine Palms, CA, and did remain so absent until on or about 20050221 .

 20050404 :        Charges referred to special court-martial.
20050525 :        NH, Camp Pendleton, CA. Applicant evaluated for SPEC PTSD.
         A/P :
         1. Chronic Post-Traumatic Stress Disorder.
          2. Personality disorder.
         3. CERUMEN IMPACTION-LEFT EAR.
         This member is not considered mentally ill (legal definition) but manifest a longstanding disorder of character and behavior, which is of such severity as to render the individual incapable of serving adequately in the USMC. The member does not presently require and will not benefit from hospitalization or psychiatric treatment. Although member is not presently considered suicidal or homicidal, they are judged to represent a continuing danger to self or other if retained in the USMC. The member is deemed fit for return to duty for immediate processing for administrative separation, which should be initiated expeditiously by their command compliance with MARCORSEPMAN 6203.3, without need of 6105 counseling.
20050614:        Counseling: Advised of deficiencies in performance and conduct (Your diagnosed personality disorder, as evidenced by the Applied Psychological Services evaluation letter of 20050205.), necessary corrective actions explained, sources of assistance provided.
Elements of Discharge: [INVOLUNTARY]

 Date Notified:                                       20050614
Basis for Discharge:     PERSONALITY DISORDER
         due to:
                                   
Least Favorable Characterization:       
Commanding Officer’s Intended Recommendation:   

Date Applicant Responded to Notification:                 20050614
Rights Elected at Notification:
Consult with Counsel                               
         Obtain Copies of Documents                
         Submit Statement(s) (date)                        
         Administrative Board                      

Commanding Officer Recommendation (date):        ( 20050614 )
SJA review (date):                                  ( 20051012 )
 Separation Authority (date):     COMMANDING GENERAL, MARINE CORPS BASE , CAMP PENDLETON ( 20051016 )
          Basis for discharge directed:             due to:
         Characterization directed:                        
Date Applicant Discharged:                         20051018






Additional Documents Submitted by Applicant and Considered By Board

 Total Number of Pages:                               10

Related to Period of Service Under Review:
          From Service and/or Medical Record:               Other Records:  

Related to Other Period(s) of Service:
          From Service and/or Medical Record:               Other Records:  

Related to Post-Service Period:
          Employment:                                          Finances:       
         Health/Medical Records:                             Substance Abuse:        
         Family/Personal Status:                             Education:      
        Community Service Efforts:                         References:     
         Criminal Records:                         

Other:
          Additional Statements From Applicant:             From Representative:    
        Other Documentation (Describe)                 

Pertinent Regulation/Law

 A. Paragraph 6210, MISCONDUCT , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 01 Sep 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 .

C. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 86 (unauthorized absence of more than 29 days) .





ADDENDUM: Information for the Applicant
Complaint Procedures : If you believe that 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 . 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 : Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years from the 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. If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted his 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 Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board. 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.

Employmen t / Educational Opportunities : The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the Board’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 Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes. Additionally, the Board 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 subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended. The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings. If the action includes either a punitive or administrative discharge for misconduct, 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 “PTSD.” Only the Board for Correction of Naval Records can grant this type of narrative reason change.

Automatic Upgrades - There is no law or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving Naval service. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge 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. Examples of documentation that may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.

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 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.

Board Membership: The names and votes of the members of the 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

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