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USMC | DRB | 2007_Marine | MD0701135
Original file (MD0701135.rtf) Auto-classification: Denied
ex-PFC, USMC
MD07-01135
Current Discharge and Applicant’s Request
Application Received: 20070814   Characterization Received:
Narrative Reason: IN LIEU OF TRIAL BY COURT-MARTIAL Authority: MARCORSEPMAN 6419

 Applicant’s Request:      Characterization change to:
                           Narrative Reason change to:
Applicant’s Issues:       1. Employment opportunities.
                           2. Record of service.
                           3. Received PTSD diagnosis.

Decision

 By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall IN LIEU OF TR I AL BY COURT MARTIAL.

Date: 20 08 0117                      Location: Washington D.C.         Representation :

Discussion

 : either which the Board cannot form the basis of relief for the Applicant, or the Board does not have the authority to grant the relief for which the Applicant petitioned. The Applicant is directed to the Addendum regarding .

Issue 2 (Equity). The Board 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. There is credible evidence in the record that the Applicant committed a pattern of misconduct. The evidence of record does not demonstrate that the Applicant was not responsible for h is c onduct or that he should not be held accountable for h is actions. When a Marine’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions. A n under other than honorable conditions discharge 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. C ertain serious offenses warrant separation from the Naval service in order to maintain proper order and discipline. The Applicant’s service was marred by three discharge warnings, four nonjudicial punishment for violations of Article(s) 86, 92, and 108 of the UCMJ, and preferred charges to a Special Court Martial. Marines may be separated upon their request in lieu of trial by special or general courts-martial if charges have been preferred with respect to an offense for which a punitive discharge is authorized and it has been determined that the Marine is unqualified for future military service. The Applicant, after consultation with Defense Council, willfully signed the request. Violations of Article (s) 92 and 108 are considered serious offense s for which a punitive discharge is authorized if adjudged by a Special or General Courts Martial. An upgrade or change would be inappropriate.

Issue 3 (Equity). The Applicant contends that his problems were attributed to Post Traumatic Stress Disorder. The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue. The NDRB found no medical diagnosis in the record to support the Applicant's claim nor did the Applicant produce any medical diagnosis by competent medical authority to support his claim. While he may feel that this was the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service. Additionally, most of the Applicant’s misconduct, including four NJPs, occurred before the Applicant was eve r deployed. The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions.

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)     20030307 - 2003 0922             
Period of Service Under Review:
 Date of Enlistment: 2003 0923               Years Contracted : ; Extension:            Date of Discharge: 20060807
Length of Service : 02 Yrs 10 Mths   06 D ys                   Lost Time : Days UA: 9 Days Confine d :
Education Level:         Age at Enlistment:       AFQT: 44          MOS: 0621 Highest Rank: CPL
Proficiency/Conduct marks (# of occasions):      4.2 / 3.7                 
Awards and Decorations ( per DD 214): ICM, SSDR, GWOTSM, NDSM, COA, RIFLE MM


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

 20040209 :        MARCORSEPMAN 6105 counseling for a violation of UCMJ Article 86 (9 days). Discharge warning issued.

20040209:         NJP -- Viol UCMJ Art. 86 (9 days).
         Awarded - FOP ($ 278 ) for ( 1 month);Restr for ( 14 days).
20040324:         NJP -- Viol UCMJ Art. 92, underage drinking.
         Awarded - FOP ($ 596 ) for ( 2 months);Restr for ( 30 days); Extra duties ( 30 days).
20040924 :        NJP -- Viol UCMJ Art. 92, underage drinking and 108, altering military ID card.
         Awarded - FOP ($ 278 ) for ( 1 month);Restr for ( 14 days); Extra duties ( 14 days).
20041028 :        NJP -- Viol UCMJ Art. 92, 2 specifications, underage drinking and violating a lawful order from SSgt B_.
          Awarded - FOP ($ 400 ) for ( 2 months) (suspended for 90 days) ; RIR ( E-1 ).

 20050428:         MARCORSEPMAN 6105 counseling for a violation of UCMJ Article 86, failure to go. Discharge warning issued.

20060328:         MARCORSEPMAN 6105 counseling for a lack if discipline and established pattern of misconduct. Discharge warning issued.

20060509 :        BAS visit seeking a referral to Mental Health for PTSD consult.


SEPARATION IN LIEU OF TRIAL
Discharge Process

 Charge(s) Preferred:                               
Charge(s) and Specification(s):                    
        
Date Applicant Submitted SILT request:            20060630      
         Consulted with or Waived Counsel:                
         Acknowledged Understanding Elements:    
         Acknowledged Guilt to:                     Article(s)
         BCD/DD authorized for offense(s)                 
         Acknowledged Consequences of OTH:       
         Type of Characterization Requested:     

Commanding Officer Recommendation (date):       
sja r e view (d ate):                                  SUFFICIENT IN LAW AND FACT (20060717)            
Separation Authority (date):                       COMMANDER, 2D MARINE LOGISTICS GROUP ( 20060724 )
         Reason for Discharge directed:           
         Characterization directed:                        
Date Applicant Discharged :                         20060807



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) Congressional interest letters
                                            


Pertinent Regulation/Law

 A. Paragraph 6419, SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL , 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 IV , Para 403m(7)(b), Presumption Concerning Court-Martial Specifications .

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 92 and 108 .




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 d ocuments 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

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