Search Decisions

Decision Text

USMC | DRB | 2007_Marine | MD0700819
Original file (MD0700819.rtf) Auto-classification: Denied
ex-, USMC
MD0
7-00819

Current Discharge and Applicant’s Request

Application Received: 20070524   Characterization Received:
Narrative Reason: MISCONDUCT     Authority: MARCORSEPMAN 6210.6

Applicant’s Request:      Characterization change to:
                           Narrative Reason change to:
Applicant’s Issues:       1. Misconduct due to mental distress caused by tour in Iraq

Decision

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

Date: 20 071220             Location: Washington D.C.         Representation :

Discussion

Issue
1 ( ). A general (under honorable conditions) discharge is warranted when the quality of the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service record. A discharge under other than honorable conditions 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. The Applicant’s service was marred by a retention warning, 2 nonjudicial punishments (NJP) for violations of the Uniform Code of Military Justice (UCMJ), Article 86, and a special court-martial for violation of Articles 86 and 92 . Violations of Articles 86 and 92 are considered serious offenses for which a punitive discharge is authorized upon conviction at special or general court-martial. Although not using the term, the Applicant essentially claims that he suffers from post-traumatic syndrome disorder (PTSD) from his Iraq deployment, and that his PTSD caused his misconduct. The Applicant offers no medical evidence or diagnosis to support his claim of P TSD. The Board did not dispute the Applicant’s claim that he suffered mental distress; however, the Board concluded that it did not warrant excusing or mitigating the serious misconduct for which the Applicant was discharged.

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, Medical and Service Record Entries , Discharge Process and evidence submitted by the Applicant, t he Board found that

Summary of Service

Prior Service:
Inactive: USMCR (DEP)     20010810 - 20011209              Active:
Period of Service Under Review:
Date of Enlistment: 20011210                                 Years Contracted :                 Date of Discharge: 20050513
Length of Service : 03 Yrs 05 Mths 04 D ys          Lost Time : Days UA: Days Confine d : 46 Days IHCA: 09
Education Level:         Age at Enlistment:       AFQT: 42 MOS: 1833 Highest Rank:
Proficiency/Conduct marks (# of occasions):     
3.4 ( 8 ) / 2.7 ( 10 )                      Fitness reports :
Awards and Decorations ( per DD 214): Rifle , CAR, GWOTEM (I), GWOTSM, SSDR, NDSM, PUC-N

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

20021105:        MARCORSEPMAN 6105 counseling for UA for 8 hours on 20021104.

20030730:        NJP -- Viol UCMJ Art. 86 - Absence from unit 20030721 - 20030725 ( 3 days/surrendered).
         Awarded - FOP ($ 316.00 ) for ( 1 month); Restr for ( 14 days); Extra duties ( 14 days).

20030730:        MARCORSEPMAN 6105 counseling for N JP this date.

20040109:        To unauthorized absence.

20040
319:        From unauthorized absence (71 days/apprehended)

20040320:        In Hands of Civilian Authorities.

20040328:        From IHCA (9 days).

20040329:        To pretrial confinement.

20040514:        SPCM -- Viol UCMJ Art. 86 - Absent from unit 20040109 20040319; Art. 92 - wearing earrings.
         Awarded - FOP ( $795.00 ) for ( 2 months); RIR ( E-1 ); Confinement ( 60 days).
         CA action 20040716: Approved, ordered executed.

20040516:        To unauthorized absence.

20050407:        From unauthorized absence (326 days/surrendered).

20050414 :        NJP -- Viol UCMJ Art. 86 - Absent from unit 20040516 – 20050407.
         Awarded - FOP ($ 617.00 ) for ( 2 months) , 1 month susp 6 months ; Restr for ( 60 days).

Discharge Process

Date Notified:   20050415
Basis for Discharge:      DUE TO
Least Favorable Characterization:       
Commanding Officer’s Intended Recommendation:   

Date Applicant Responded to Notification:                  20050415
Rights Elected at Notification:
         Consult with Counsel                      

         Obtain Copies of Documents               

         Submit Statement(s) (date)                        
         Administrative Board                      

Commanding Officer Recommendation (date):        ( 20050415 )
SJA review (date):      
( 200504 22 )
Separation Authority (date):    
COMMANDER, MARINE CORPS BASE, QUANTICO, VA ( 20050429 )
Basis for discharge directed:   DUE TO
Characterization directed:     

Date Applicant Discharged:       20050513

Types of Documents Submitted by Applicant and Considered By Board

Related to Military Service:      Service and/or Medical Record:            Other Records:

Related to Post-Service Period:         
        
Employment:                        Finances:                          Education:               
         Health/Medical Records:
                  Substance Abuse:                           Criminal Records:       
         Family/Personal Status:
                  Community Service:                References:              
        
Additional Statements From Applicant:    From Representative:    Other Documentation (Describe)

Pertinent Regulation/Law

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

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, Absence without leave (for more than 30 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 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 : Subsequent to a document review, former members are eligible for a personal appearance hearing, provi ded 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 grante d 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

Similar Decisions

  • USMC | DRB | 2007_Marine | MD0700356

    Original file (MD0700356.rtf) Auto-classification: Denied

    After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Medical and Service Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found that Summary of Service Prior Service: Inactive: USMCR (DEP)20010910 - 20010916Active: Period of Service Under Review: Date of Enlistment: 20010917Years Contracted:Date of Discharge:20050407 Length of Service: 03 Yrs 06Mths21 DysLost Time:Days UA: Days Confined: Education Level: Age at...

  • NAVY | DRB | 2007_Navy | ND0700214

    Original file (ND0700214.rtf) Auto-classification: Denied

    The Applicant’s service was marred by four nonjudicial punishments and two retention warning for violations of UCMJ Articles 86 (unauthorized absence, 6 specifications), 87 (missing movement), 90 (willfully disobeying a superior commissioned officer), 91 (insubordinate conduct, 2 specifications), 92 (failure to obey, 3 specifications), 107 (false official statements), 111 (drunk operation of a motor vehicle), 112 (drunk on watch), and 134 (disorderly conduct and communicating a threat). ...

  • USMC | DRB | 2007_Marine | MD0701233

    Original file (MD0701233.rtf) Auto-classification: Denied

    After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Medical and Service Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found that Summary of ServicePrior Service: Inactive: USMCR (DEP)20020307 - 20021014Active: Period of Service Under Review: Date of Enlistment: 20021015Years Contracted:; Extension: Date of Discharge:20050414Length of Service: Yrs Mths29 DysLost Time:Days UA: Days Confined: Education Level:...

  • USMC | DRB | 2007_Marine | MD0700685

    Original file (MD0700685.rtf) Auto-classification: Denied

    After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Medical and Service Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found that Summary of ServicePrior Service: Inactive: USMCR (DEP) 20000829 - 20001015 Period of Service Under Review: Date of Enlistment: 20001016Years Contracted:4; Extension: Date of Discharge:20060613Length of Service: 05 Yrs 07Mths 28 DysLost Time:Days UA: 231 Days Confined: 59Education...

  • USMC | DRB | 2007_Marine | MD0701093

    Original file (MD0701093.rtf) Auto-classification: Denied

    The Board determined that the documentation provided by the Applicant did not mitigate the circumstances that resulted in the characterization of discharge.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. 20050318: Vacate FOP for 1 month, Restr and Extra duties for 45 days awarded at NJP dated 20050116.20050331: MARCORSEPMAN 6105...

  • NAVY | DRB | 2007_Navy | ND0700164

    Original file (ND0700164.rtf) Auto-classification: Denied

    After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that the discharge was appropriate and that the evidence of post-service conduct was found not to mitigate the conduct which precipitated the discharge. After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Medical and Service Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found that Summary of...

  • NAVY | DRB | 2007_Navy | ND0700273

    Original file (ND0700273.rtf) Auto-classification: Denied

    The record clearly indicates that the Applicant was afforded his NJP appeal rights, but did not take that opportunity to challenge the NJP. The Board found that this issue was directly contradicted by the Applicant’s own statement, indicated on his separation physical, that he did not use alcohol. After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Medical and Service Record Entries, Discharge Process and evidence submitted by the Applicant,...

  • USMC | DRB | 2007_Marine | MD0700721

    Original file (MD0700721.rtf) Auto-classification: Denied

    After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that the discharge was appropriate and that the evidence of post-service conduct was found not to mitigate the conduct which precipitated the discharge.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. Applicant...

  • NAVY | DRB | 2007_Navy | ND0700780

    Original file (ND0700780.rtf) Auto-classification: Denied

    After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that the discharge was appropriate and that the evidence of post-service conduct was found not to mitigate the conduct which precipitated the discharge. After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Medical and Service Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found that Summary of...

  • USMC | DRB | 2007_Marine | MD0700570

    Original file (MD0700570.rtf) Auto-classification: Denied

    Applicant’s Request:Characterization change to:Narrative Reason change to: Applicant’s Issues:None submitted. After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Medical and Service Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found that Summary of Service Prior Service: Inactive: USMCR (DEP)19930312 - 19940123Active: Period of Service Under Review: Date of Enlistment: 19940124Years Contracted:; Extension:...