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USMC | DRB | 2008_Marine | MD0800823
Original file (MD0800823.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20080222
Characterization of Service Received:
Narrative Reason for Discharge: ABSENT WITHOUT LEAVE (ADMIN BOARD REQUIRED BY WAIVED)
Authority for Discharge:         MARCORSEPMAN ABSENT WITHOUT LEAVE

Applicant’s Request: Characterization change to: HONORABLE OR
                  Narrative Reason change to:

Summary of Service

Prior Service:
 Inactive: USMCR (DEP)    20001114 - 20010804     Active:           20010805 - 20041002

Period of Service Under Review:
 Date of Enlistment: 20041003      Age at Enlistment:
Period of Enlistment : Years Months
Date of Discharge: 20061202       H ighest Rank:
Length of Service: Years Months 29 D ays
Education Level:         AFQT: 44
MOS: 1833
Proficiency/Conduct Marks (# of occasions): 1.7 ( ) / 1.7 ( )     Fitness Reports:

Awards and Decorations (per DD 214):     (WITH COMBAT V) (3) ICM

Periods of UA: 20051108 to 20051114 (7 days)
20051205 – 20060117 (43 days)
20060427 to 20061009 (166 days)

CONF: 20060117 - 20060221 (33 days)
20060303 to 20060309 (7 days)
20061010 to 20061011 (2 days-IHCA)
NJP:
- 20060426: Article 86 (UA), 2 specifications:
- 20051205 - 20060117 (43 days)
- 20051108 - 20051114 (7 days)
 Article 92 (Disobeyed a lawful order by failing to register a handgun)
Article 128 (Assaulted your wife)
Article 134 (Violated military protective order)
Awarded: Suspended:

SCM:
- 20061122: Article 86 (UA) 20060427 to 20061009 (166 days)
 Sentence: 20061012 to 20061121 (41 days)
CA Action (20061122) Sentence is approved and will be executed, except for the reduction to E-1
approved reduction to E-2.
SPCM: CC:




Retention Warning Counseling:
- 20060426: For unauthorized absence, NJP
- 20061122 :      For unauthorized absence, SCM

Administrative Corrections to the Applicant’s DD 214

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

         “ CONTINUOUS HONORABLE ACTIVE SERVICE FROM
010805 UNTIL 041002 ”
         “ (06) 20051108-20051113, (43) 20051205-20060116,
(3) 20060117-20060119, (33) 20060120-20060221, (7) 20060303-2006039, (49) 20060119-20060308,
(166) 20060427-20061009, (41) (2) 20061010-20061011, 20061012-2006112 1

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:           Substance Abuse:                           Criminal Records:       
         Family/Personal Status:                   Community Service:                References:              
Additional Statements:
From Applicant:         From Representation:     From Congress member:

Other Documentation:

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 (UA); Article 92 (Failure to obey an order or regulation); Article 128 (Assault) and Article 134 (Violated military protective order).


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

Applicant’s Issues

1. Discharge too harsh due to mitigating circumstances

Decision

 Date: 2009 212              Location: Washington D.C.        R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall MISCONDUCT DUE TO A PATTERN OF MISCONDUCT .
Discussion

 : ( ) . The Applicant contends his discharge was too harsh due to the fact his misconduct was the result of documented Post Traumatic Stress Disorder (PTSD) suffered upon his return from his second tour in Iraq. 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. The Applicant’s record of service was marred by two retention warnings, one NJP and one SCM for violations of the Uniformed Code of Military Justice (UCMJ): Article 86 (UA); Article 92 (Failure to obey an order or regulation); Article 128 (Assault) and Article 134 (Violated military protective order). These are considered serious offenses, punishable by a punitive discharge if adjudicated by a special or general court-martial. The command did not pursue a punitive discharge but opted instead for an administrative discharge.

The Applicant was on his second enlistment, having served honorably throughout his first term , which included two tours in Iraq. The Applicant reenlisted for another 4 years prior while deployed in Iraq for the second time and prior to returning to the United States . After his first tour to Iraq the Applicant had a mild case of documented PTSD but was able to effectively compartmentalize and deal with issues that confronted him. During his second tour to Iraq the Applicant, with increased responsibilities, experienced more traumatic situations in the close-quarter battles in Al Fallujah. Upon his return from Iraq the Applicant, trying to cope with his PTSD, started having marital problems combined with dealing with his parent’s house being destroyed by Hurricane Katrina: These other stressors exacerbated his PTSD condition.

 After a year of being back from Iraq, the Applicant transferred to the Assault Amphibian School Battalion to be an instructor. In most cases this type of assignment gives the Marine a break from a combat unit, usually is less stressful and allows the Marine to get his affairs in order. In this case, the Applicants condition became more severe and he continued to deteriorate due to ongoing marital issues. The Board thoroughly reviewed the Applicants record of service and the misconduct that led to his discharge. The Board felt that the Applicant was still culpable for his decisions to enter into a UA status twice for a lengthy amount of time, which ultimately brought discredit upon him. The NDRB discerned no impropriety in the discharge action but did discern an inequity in the characterization of the Applicant’s service based on his documented PTSD and what may have been additional stressors . The Board determined the Applicant’s PTSD and contributing stressors were sufficient to warrant an upgraded to “General (Under Honorable Conditions)”.

The NDRB is authorized to consider post-service factors in the re-characterization of a discharge. However, there is no law or regulation, which provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in the civilian life subsequent to leaving the service. 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 help support a post service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificate (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; attending 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 previous in-service misconduct was an aberration and not indicative of the member’s overall character.

Besides the Applicants statement on the DD Form 293, he provided additional documentation, such as references and medical records on his behalf. To warrant an upgrade to “Honorable”, the Applicant’s post service efforts will need to be more encompassing. The Applicant will need to produce additional evidence as stated in the above paragraph with the full understanding completion of these items alone does not guarantee an additional upgrade. The Board determined the characterization of service that he is being upgraded to, “General (Under Honorable Conditions)”, is an appropriate characterization considering the length of service and the UCMJ violations involved, and based on the limited post service documentation provided.

The Applicant should refer to “Combat Veteran’s” at the Veterans Administration website ( http://www1.va.gov/opa/Is1/1.asp ) for additional help. Combat Veterans: Effective Jan. 28, 2008, veterans discharged from active duty on or after Jan. 28, 2003, are eligible for enhanced enrollment placement into Priority Group 6 (unless eligible for higher enrollment Priority Group placement) for 5 years post discharge. For additional information, call 1-877-222-VETS (8387).

 After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Record, Discharge Process and evidence submitted by the Applicant, the Board found


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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