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USMC | DRB | 2008_Marine | MD0800784

Original file (MD0800784.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20080129
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)    20020222 - 20020603              Active:

Period of Service Under Review:
Date of Enlistment: 20020604      Period of Enlistment : Years Months     Date of Discharge: 20061218
Length of Service: Years Months 15 D ays        Education Level:        Age at Enlistment:       AFQT: 42
MOS: 1812         Highest Rank:    Fitness Reports:
Proficiency/Conduct Marks (# of occasions):      ( ) / 1.9 ( )
Awards and Decorations (per DD 214): (Kuwait) (Iraq)

Periods of UA/CONF: UA: 20030713-20030723 (11 days)
20030726-20030804 (10 days)
20030807-20031204 (119 days)
20040702-20040716 (14 days)

CONF: 20040108-20040120 (13 days)
20040813-20041123 (103 days)
NJP:
- 20030211 :      Article 134 (Drunk and disorderly)
         Awarded: Suspended: .

SCM:
- 20040108 : Article 86 (UA, absent from unit 0730, 20030807-1030, 20031204 (119 days)
Sentence:
CA Action 20040108 Sentence approved and ordered executed.

SPCM:
- 20041122 :      Article 86 (UA), 20040702-20040716 (14 days)
         Article 92 (Violation of a lawful order), 2 specifications
         Article 128 (Assault consummated by battery), 3 specifications
         Article 134 (Drunk and disorderly)
         Sentence: BCD; CONF FOR 11 MONTHS
         CA action: Confinement in excess of time served suspended for 12 months.

CC:

6105 Counseling:

- 20040315 :      For successful completion of Intensive Outpatient Treatment at Substance Abuse Rehabilitation Department (SARD) at Naval Medical Center, San Diego, CA for a substance use disorder. You are further advised that you will meet with the Bn SACO weekly, attend three Alcoholics Anonymous


meetings a week and show proof of attendance to these meetings. You will attend a minimum of 52 continuing care group sessions.

- 20040722 : For the finding of the Case Review Committee (CRC) on 20040714. SNM's case was classified a Level
IV. This CRC was convened because of a Domestic Assault that occurred on 20040517.

Administrative Corrections to the Applicant’s DD 214

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

         “20030713-20030723 (11), 20030726-20030804, (10) 20030807-20031203 (119), 20040108-20040120 (13), 20040702-20040716 (14), 20040813-20041123 (103) ”

The NDRB will recommend to the Commandant of the Marine Corps (MMSB-13) that the DD 214 be corrected as appropriate.

Types of Documents Submitted/reviewed

Related to Military Service:      DD 214:          Service and/or 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 Member of Congress:

Other Documentation (Describe):

Pertinent Regulation/Law

A. Paragraph 1105, DISCHARGE ADJUDGED BY SENTENCE OF 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)(a), Presumption Concerning Court-Martial Specifications .

C. 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 .

D. 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, Article 92 and Article 128.

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

Applicant’s Issues

1. Veteran’s benefits.
2. Post-Traumatic Stress Disorder (PTSD) caused his misconduct.
3. No rehabilitation upon return from combat.

Decision

Date: 20090114 Location: Washington D.C. R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall COURT-MARTIAL .

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 , specifically the paragraph concerning , regarding this Issue.

: ( ) . The Applicant contends he is entitled to clemency due to his suffering from PTSD and the lack of rehabilitation following his return from a combat deployment. 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. In response to the Applicant’s clemency request, relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts. With respect to a discharge adjudged by a court-martial case, the action of the NDRB is restricted to upgrades based on clemency. Clemency is an act of leniency which reduces the severity of the punishment imposed. The Applicant’s record of service is marred by two retention warnings; one NJP for violation of the Uniform Code of Military Justice (UCMJ): Article 134 (Drunk and disorderly); one SCM for violation of Article 86 (UA), for a period of 119 days; and one SPCM for violations of Article 86 (UA); Article 92 (Disobeying a lawful order); Article 128 (Assault consummated by battery); and Article 134 (Drunk and disorderly). Violation of Article 86 for more than 30 days, or any violation of Article 92 or 128, is considered a serious offense, punishable by punitive discharge and confinement if adjudicated and awarded by a special or general court-martial.

The medical records available for review by the NDRB do not indicate any complaint or diagnosis of PTSD. Furthermore, the NDRB notes the Applicant’s previous request for clemency filed on 22 November 2004 does not mention PTSD as the basis for that clemency request. Finally, the Applicant did not submit any post-service medical records documenting a diagnosis with PTSD by competent medical authorities. The NDRB determined the Applicant’s claim PTSD caused his misconduct was without merit and clemency is not warranted based on this claim.

After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Service and Medical Record Entries, Discharge Process and evidence submitted by the Applicant, t he Board found clemency was not warranted and the sentence awarded the Applicant at his court-martial was appropriate for the offenses he committed.

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, 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.

Employment/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 or is referred to a court-martial 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 other medical related reasons.” 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 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 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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USMC | DRB | 2008_Marine | MD0800784

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