ex-, USMC

                  Current Discharge and Applicant’s Request

Application Received:  20080806
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge:  MARCORSEPMAN

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

                             Summary of Service

Prior Service:
Inactive: USMCR (DEP)  20000908 - 20001210         Active:

Period of Service Under Review:
Date of Enlistment: 20001211            Age at Enlistment:
Period of Enlistment:   Years   Months
Date of Discharge:  20040114                                        Highest
Rank:
Length of Service:    Yrs    Mth  04  Dys
Education Level:             AFQT:  35
MOS:  0411
Proficiency/Conduct Marks (# of occasions):    () /  ()  Fitness Reports:

Awards and Decorations (per DD 214):  Rifle  CAR PUC SSDR NDSM

Periods of CONF:  Unable to read dates on DD Form 214, Block 29

NJPs:
      20010815:   Article 121 (Larceny of a cellular phone)
            Awarded     .  Susp - .
      20011221:   Article 121 (Larceny of a personal phone code and make
               numerous long distance phone calls)
            Awarded     .  Susp - .
      20020521:   Article 86 (UA - appointed place of duty), 2
               specifications
            Awarded     .  Susp - .
      20021203:   Article 91 (Disrespect towards a noncommissioned officer)
            Article 92 (Failure to obey other lawful written order)
            Awarded     .  Susp - .
      20030131:   Article 134 (Breaking restriction)
            Awarded     .  Susp - .

SCMs:
      20011005:   Article 113 (Sleeping on post)
            Article 91 (Disrespectful towards a noncommissioned officer)
            Article 107 (False official statement)
            Article 92 (Violate BO 1700.6H by wrongfully drinking under the
               legal drinking age)
            Sentence:   .

      20030903:   Article 86 (UA - appointed place of duty)
            Article 92 (Failure to obey a lawful order), 2 specifications
               (Wrongfully having a pierced nipple, leaving gym before his
               hour of physical training was finished - 50 minutes early)
            Sentence:   .

SPCMs:           CC:

6105 Counseling:
      20011214:   For disrespect toward an NCO, underage drinking, false
               official statement, and sleeping on post.  These charges
               indicate a lack of judgment, maturity, integrity and
               discipline.  This type of behavior is intolerable and will
               not be accepted.

                    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:





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

                             Applicant’s Issues

1. Applicant wants VA treatment for Post-Traumatic Stress Disorder (PTSD).
2. Applicant claims he suffers from PTSD because of his experiences in
Iraq.
3. Applicant claims he was harassed by senior personnel in his chain of
command.

                                  Decision

Date:  20090625        Location: Washington D.C.    Representation:

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

                                 Discussion

The NDRB, under its responsibility to examine the propriety and equity of
an Applicant’s discharge, is authorized to change the character of service
and the reason for discharge if such change is warranted.  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 reflects one NAMVC 118(11) page 11 warning;
five non-judicial punishments (NJPs) for violations of Uniform Code of
Military Justice (UCMJ) Article 86 (UA, appointed place of duty, 2
specifications), Article 91 (disrespect towards a noncommissioned officer),
Article 92 (failure to obey a lawful order), Article 121 (larceny, 2
specifications, stole a cellular phone and stole a personal phone code),
and Article 134 (breaking restriction); and two summary courts-martial
(SCMs) for violations of Article 86 (UA, appointed place of duty), Article
91 (disrespect towards a noncommissioned officer), Article 92 (failure to
obey a lawful order, 3 specifications), Article 107 (false official
statement), and Article 113 (sleeping on post).  Based on the offenses
committed by the Applicant, his command administratively processed him for
separation.  During processing for separation, the Applicant waived his
right to submit a written statement, elected to consult with qualified
counsel and requested an Administrative Discharge Board (ADB).  By a vote
of 3-0, the ADB recommended his separation from the Marine Corps, an Under
Other Than Honorable characterization, and that he not be retained in the
Individual Ready Reserve.

:  (Nondecisional) () The U.S. Department of Veterans Affairs (VA)
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.

Issue 2:  (Decisional) () .  The Applicant claims he suffers from PTSD
based on what he did, experienced, and saw while serving in Iraq.  To
determine whether or not PTSD is a mitigating factor, the NDRB needs to
review the Applicant’s medical records.  The NDRB formally requested the
Applicant’s official medical records from appropriate authorities, but did
not receive copies after waiting six months.  In addition, the Applicant’s
DD Form 293 noted that he had attached copies of medical records diagnosing
him with PTSD, but they were not attached to the application.  The
Executive Secretary of the NDRB sent a letter to the Applicant dated April
30, 2009 in which he stated, “Attached medical records diagnosing you with
PSTD were not attached with application.  Please send in this information
for the board’s viewing.”  Additionally, the NDRB did try to contact the
Applicant using the telephone number listed on his DD Form 293, but found
it was not a valid number.  To date, the Applicant has not submitted any
documentation to support his contention.

Issue 3:  (Decisional) () .  The Applicant contends he was harassed by
senior members within his chain of command due to his nipple piercings.
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 issues.  There is no evidence in the record, nor has the Applicant
produced any evidence, to support this contention.  The Applicant’s
statement alone does not overcome the government’s presumption of
regularity in this case.  In reviewing the Applicant’s misconduct, most of
his violations and his retention warning had nothing to due with having
pierced nipples.  The evidence of record did not show that the Applicant
was not responsible for his conduct or that he should not be held
accountable for his actions.

Summary:  After a thorough review of the available evidence, to include the
Applicant’s summary of service,  record entries, and discharge process, the
NDRB found   Therefore, the awarded characterization of service shall
remain Under Other Than Honorable Conditions, and the narrative reason for
separation shall remain Misconduct.

The Applicant remains eligible for a personal appearance hearing for a
period of fifteen years from the date of his discharge.  The Applicant is
directed to the Addendum, specifically the paragraphs titled Additional
Reviews, Automatic Upgrades, and Post-Service Conduct.

                          Pertinent Regulation/Law

A.  Paragraph 6210, MISCONDUCT, 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 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 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:  After a document review has been conducted, 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.  There are veteran's organizations, such as the American
Legion and the Association of Service Disable Veterans, willing to provide
guidance to former service members in their efforts to obtain a discharge
upgrade.  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 U.S Department of Veterans Affairs (VA) 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 NDRB has no authority to upgrade
a discharge for the sole purpose of enhancing employment or educational
opportunities.  Regulations limit the NDRB’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 NDRB 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 or for any basis wherein an Other Than Honorable Discharge is
authorized, 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.

Post-Service Conduct:  The NDRB is authorized to consider post-service
factors in the recharacterization of a discharge.  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 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;
attendance 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.

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 NDRB 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