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USMC | DRB | 2008_Marine | MD0800947
Original file (MD0800947.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20080325
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)     20010224 - 20010916              Active:
Period of Service Under Review:
 Date of Enlistment: 20010917               Period of enlistment : Years Months             Date of Discharge: 20040526
Length of Service : Yrs Mths 10 D ys      Education Level:         Age at Enlistment:       AFQT: 65
MOS: 0622        Highest Rank:                     Fitness reports:
Proficiency/Conduct marks (# of occasions):      ( )/ ( )
 Awards and Decorations ( per DD 214): Rifle : , Pistol : , , , , LoA.

Periods of UA / CONF : (Sentenced to 30 days confinement, but failed pre-confinement physical on 30 NOV 2003)

NJPs :     3
         20030731: Art 86 ( F ailure to go to appointed place of duty) ,
         Art 91 ( I nsubordinate conduct) , 2 specifications,
         Art 92 ( F ailure to obey a lawful order) , 2 specifications,
         Art 134 ( D runk and disorderly & I ncapacitated for performance of duties) , 2 specifications .
 Awarded - RIR (E2), RESTR (60 days), FOP ($645 for 2 months).
Susp - FOP for 6 months. Vacated 20030922.
         20030922: Art 91 ( I nsubordinate conduct) ,
                  Art 92 ( F ailure to obey a lawful order),
                  Art 134 ( B reaking restriction).
         Awarded - FOP ($575 for 2 months), RESTR EPD (45/45), RIR (E1). Susp - FOP for 6 months.
         20031126: Art 86 ( F ailure to go to appointed place of duty),
                  Art 91 ( I nsubordinate conduct),
                   Art 134 ( I ncapacitated for performance of duties). Susp - None.
S CMs :    1
         20040220: Art 90 (willfully disobeying a lawful order from a commissioned officer),
                   Art 128 (assault),
                  Art 134 (breaking restriction).
          Sentence - 30 days confinement.

SPCMs:  

CC:      

6105 Counseling : 2
         20030328: For consuming alcohol while underage (Kandahar).
          20031118: For establishing a pattern of misconduct ( multiple violations of UCMJ Articles 91, 92, and 134).





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 Representat ion :              From Member of Congress:
Other Documentation (Describe)  

- New England Journal of Medicine Article relating to mental health problems of combat veterans dated 1 July 2004.

- Department of Veterans Affairs rating decision dated 10 April 2007.

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

Applicant’s Issues

 1. Untreated Post Traumatic Stress Disorder (PTSD) led to misconduct.
2. Record of service.
3. Post service conduct.

Decision


 Date: 20 08 0702             Location: Washington D.C .         R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall Misconduct .
Discussion

 : ( ) . The Applicant contends his untreated diagnosis of PTSD led to his misconduct. In support of this contention, the Applicant submitted excerpts of his discharge package in which two doctors note the Applicant was not diagnosed with PTSD until his discharge was already being processed. The Applicant also submitted a VA Rating Decision confirming his service-connected diagnosis of PTSD. The Board determined the Applicant's discharge was inequitable because the Naval Healthcare System failed to diagnose and treat the Applicant prior to his discharge being processed. The Board feels it is likely some of the Applicant's misconduct would not have occurred had he been diagnosed and treated in a timelier manner. The Board determined an upgrade to General (Under Honorable Conditions) was warranted.

: ( ) . The Applicant contends his discharge was inequitable based on his record of service. An administrative discharge is not punishment. An under other than honorable conditions discharge is warranted when significant negative aspects of a service member's record outweigh the positive. The Applicant's service record was marred by three non-judicial punishments, a Summary Court Martial, and two 6105 counseling entries for violations of the U niform C ode of M ilitary J ustice, Articles 86 (failure to go to appointed place of duty) ; 91 (insubordinate conduct) ; 92 (failure to obey lawful orders) ; 134 (drunk and disorderly/incapacitated for performance of duties) ; and 128 (assault). Based on the Applicant's record of service, the Board determi ned an upgrade to Honorable would be inappropriate.

: ( ) . The NDRB is authorized to consider post-service factors in the recharacterization 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. Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question. 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. The Applicant states he is sober and receiving medical treatment as evidence of his post service conduct . The Applicant's efforts need to be more encompassing. For example, the Applicant could have produced evidence of a verifiable employment record, documentation of community service, evidence of a drug free existence, and certification of non-involvement with civil authorities. The Applicant should be aware completion of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case-by-case basis to determine if post service conduct mitigates the reason for the characterization of discharge. As previously discussed, the Applicant's record is replete with misconduct while in-service. The Board determined the Applicant's post-service conduct was insufficient to mitigate his in-service misconduct.

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







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 .



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 or is referred to a court-martial fo r 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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