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USMC | DRB | 2009_Marine | MD0900278

Original file (MD0900278.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20081117

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)       20021105 - 20030727     Active:

Period of Service Under Review:
Date of Current Enlistment: 20030728     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20071016      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 19 D a y ( s )
Education Level:        AFQT: 79
MOS: 3043
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle LoA (3) CoA

Periods of UA / CONF : 20060725-20060727 ( 3 days); 20060808-20070904 ( 392 days) / CONF: 20070905- NFIR

NJP:

- 20050303 :      Article 92 ( Failure to obey an order or regulation) , 2 specifications
         Article 121 (Larceny and wrongful appropriation)
         Awarded : Susp ended:

SCM:

SPCM:

CC:

Retention Warning Counseling : NFIR

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.       Discharge is inequitable because the Applicant served his country honorably.
2.       Applicant’s misconduct was due to his inability to handle the effects of Post Traumatic Stress Disorder (PTSD).

Decision

Date: 20 0 9 0225 Location: Washington D.C .         R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall IN LIEU OF TRIAL BY COURT-MARTIAL .

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 g overnment al a ffairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Applicant’s record of service included nonjudicial punishment ( ) for o f the Uniform Code of Mil itary Justice (UCMJ): Article 92 (Failure to obey an order or regulation , 2 specifications : failed to turn in a report as required and consumed alcohol under the age of 21 ), Article 121 (Larceny and wrongful appropriation , 1 specification : obtain ed a global positioning system (GPS) from the supply warehouse ) . The Applicant did not have a pre-service drug waiver . The Applicant acknowledged complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 4 Nov 2002 . O n 6 Aug 2006, the Applicant started an unauthorized absence (UA) period for 392 days until apprehended by civil authorities. After being returned to the Marine Corps, the Applicant was charged with violation of Article 86 with the intention of initiating court-martial proceedings. After consulting with qualified counsel , the Applicant requested and was granted separation in lieu of trial by court-martial (SILT) . The Applicant submitted a written statement and waived his right to an administrative board as part of his request for SILT . P er regulations, in order to attain approval for a SILT request, service members must have been afforded the opportunity to consult with a qualified counsel and submit a written statement. They must also fully understand the elements of the offense(s) for which they were charged and must admit their guilt. They further certify a complete understanding of the negative consequences of their actions and that characterization of service could be Under Other Than Honorable Conditions (OTH), which might deprive them of virtually all veterans' benefits based upon their current enlistment, and that they might expect to encounter substantial prejudice in civilian life in situations wherein the type of service rendered or the character of discharge received therefrom may have a bearing.

: (Decisional) ( ) . The Applicant contends his discharge is inequitable because the Applicant served his country honorably. The Applicant also contends his misconduct was due to his inability to handle the effects of PTSD . The Applicant was UA for well over a year and ended only when apprehended by civil authorities. This is an extremely serious offense which could have resulted in a punitive discharge and confinement if adjudicated and awarded as part of a sentence by a special or gen eral court- martial. The NDRB advises the Applicant that despite a service member’s prior record of service certain serious offenses warrant separation from the Navy to maintain proper order and discipline.

The NDRB requested, but never received, the Applicant’s in-service medical record s to verify if he had been diagnosed with PTSD while in the service. Per the Staff Judge Advocate’s letter regarding the Applicant’s SILT request, he stated the Applicant was diagnosed with a major depressive disorder; recurrent, severe without psychotic features. In the Applicant’s own statement of 19 September 2007, he made no mention of PTSD but did mention he became suicidal and started having severe problems with depression. In a Veterans Affairs (VA) doctor’s note of 1 October 2008, the Applicant’s assessment was “1. Posttraumatic stress disorder by history. Schizophrenia by history. 2. Panic disorder without agoraphobia. 3. Marijuana use ongoing. 4. Rule-out depressive disorder recurrent type moderate in severity.” On 21 October 2008, a VA doctor noted the Applicant’s post-deployment screen for PTSD was negative. In a VA doctor’s note of 12 November 2008, he stated, “the patient was never in “actual combat” in Iraq- - involved in administrative work.”

The convening authority accepted the Applicant’s request for SILT in accordance with regulations. The record clear ly shows the commanding general carefully considered the Applicant’s mental conditio n and previous service record when assigning the characterization of service . Although the Applicant may not have been diagnosed with PTSD while in the service, t he NDRB believes mitigation for the Applicant’ s mental condition h ad already been accounted for by the commander , who was unusually lenient in assigning a General (Under Honorable Conditions) characterization of service. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the NDRB discerned no inequity in the discharge action.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, medical and record entries, discharge process and documentation submitted by the Applicant , the Board found the discharge was proper and equitable. Therefore, the awarded characterization of service shall GENERAL UNDER HONORABLE CONDITIONS and the narrative reason for separation shall remain .

The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of 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 6419, SEPARATION IN LIEU OF TRIAL BY 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)(b), 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 .

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 of the Applicant’s 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 veterans organizations such as the American Legion and the Association of Service Disable Veterans that are 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 NDRB. 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 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 is processed subsequently for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended 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 BCNR can grant this type of narrative reason change.

Automatic Upgrades - There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct 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 certificates (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 at 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 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

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USMC | DRB | 2009_Marine | MD0900278

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