Upgrade.Vet

USMC | DRB | 2008_Marine | MD0801900

Original file (MD0801900.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20080905

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)     20030816 - 20031102     Active:

Period of Service Under Review:
Date of Enlistment: 20031103     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20071102      H ighest Rank:
Length of Service : Y ea rs M on ths 00 D a ys
Education Level:        AFQT: 57
MOS: 3521
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle (3d award) ICM

Periods of UA / CONF : SCM: SPCM: CC:

NJP:
- 20060927 : Article 11 1 ( Drunken driving along with possession of an open container of alcoholic beverage)
Article 1 34 ( Vehicle collision whic h caused property damage and leav ing scene of accident )
Awarded : Susp ended:

Retention Warning Counseling :

- 20040920 : For violation of A rticle 86 and A rticle 87, never showed up at appointed place of duty .
- 20060329 : For violation of A rticle 92 , failure to obey order or regulation, you wore a T-shirt with profanity .
- 20060410 : For the following deficiencies: Breaking a NC state law , h unting a deer after sunset .
- 20070920 : For driving while on a revoked driver’s license on 070524, driving through a red light , were arrested and
released on a secured bond; and unauthorized absence on 070710 .
- 20070920: For i llegal drug involvement , c ocaine use identified through urinalysis NAVDRUGLAB reported 070529 .

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 Representat ion : From Congress member :
Other Documentation :

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

Applicant’s Issues

1. Medical circumstances ( a m ental d isorder) led to discharge .

Decision

Date: 20 0 9 0129 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 disciplinary problems were the result of a medical issue ( a m ental d isorder) after he returned from 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 five retention warnings for violations of the Uniform Code of Military Justice (UCMJ): Article 86 ( UA ), Article 87 (Missing movement), Article 92 (Failure to obey an order or regulation), Article 112a (Drug abuse , c ocaine) and one NJP for violation s of Article 111 (Drunken driving) and Article 134 ( Vehicle collision whic h caused property damage and leav ing scene of accident ). The NDRB advises the Applicant certain serious offenses warrant separation from the service in order to maintain proper order and discipline. Violation of Article 112a is one such offense requiring mandatory separation regardless of time in service or grade. Violations of this policy result in, at a minimum, mandatory processing for an administrative separation which usually results in an unfavorable characterization of discharge or, at a maximum, a punitive discharge and possible confinement if adjudicated and awarded as part of a sentence 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 subject to an NJP on 27 September 2006 (a year after his return from Iraq) for DWI, which he had an accident and left the scene before authorities arrived. Upon further review of the Applicant ’ s Medical Record, a Client Referral Form dated 9 March 2007 requested that he be evaluated for long term depression based on claims he has been depressed, off and on , for the past six months. The Applicant said “he began to feel this way after he was redu ced in rank for a D riving W hile I ntoxicated (DWI) last year. ” A review of the Applicant’s Post Deployment Health Assessment indicated he had no issues upon returning from Kuwait and displayed no signs or symptoms of depression, fear, stress, or emotional issues as a result of his deployment. The Applicant was seen a few more time for mental health issues, which likely was due to stress from his NJP and being put on the Body Composition Program for being 55 pounds over his maximum weight during the same time period . Within the year leading up to his only NJP, the Applicant was counseled once for wearing a T-shirt with profanity and explicit phrases , and another time for breaking a North Carolina hunting regulation for hunting deer after sunset . In May 2007, t he Applicant was arrested for driving through a red light , while his driver’s license was in a revoked status and he also screene d positive for the use of cocaine as confirmed by a NAVDRUGLAB message dated 29 May 20 07 . There was no documentation contained in the Applicants records, nor did he provide evidence or documentation, which indicated he was not responsible for his actions or his misconduct or was declared mentally incompetent due to any mental disorder . The Board determined the Applicant ’s awarded discharge characterization was appropriate and an upgrade would not be appropriate.

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. 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.

Beside the Applicants statement on the DD Form 293, he failed to provide any additional documentation or evidence on his behalf. To warrant an upgrade the Applicant’s post service efforts need to be more encompassing. The Applicant could have produced additional evidence as stated in the above paragraph with the full understanding completion of these items alone does not guarantee an upgrade. The Board determined the characterization of service received, “Under Other Than Honorable Conditions”, was an appropriate characterization considering the length of service and the UCMJ violations involved, and based on the lack of post service documentation provided an upgrade would be inappropriate. Should the Applicant feel his post service conduct becomes substantial enough to warrant a personal appearance, there are veteran’s organizations, such as the American Legion, willing to provide guidance to assist former service members in their efforts to obtain a discharge upgrade.

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

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 s of the UCMJ : Article 86 (UA), Article 87 (Missing movement), Article 92 (Failure to obey an order or regulation), Article 111 (Drunken driving), Article 112a (Drug abuse), and Article 134 ( Vehicle collision whic h caused property damage and leav ing scene of accident ).

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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USMC | DRB | 2008_Marine | MD0801900

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