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USMC | DRB | 2009_Marine | MD0901203
Original file (MD0901203.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20090402
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)       20000912 - 20001204     Active:  

Period of Service Under Review:
 Date of Current Enlistment: 20001205     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20050711      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 04 D a y ( s )
Education Level:        AFQT: 33
MOS: 0311
Proficiency/Conduct M arks (# of occasions): 2.0 ( 13 ) / 2.1 ( 12 )   Fitness Reports:

Awards and Decorations ( per DD 214):      Rifle

Periods of UA / CONF : UA 20010706-20010806 (30 Days), Missing Movement: 20010818 - 2001-0820 (3 DAYS) ; CONF: 20010909-20011008 (30 DAYS); UA: 20011117-20011120 (3 days), UA: 20020205-20030524 (484 DAYS); IHCA 20030525-20030526 (1 DAY); UA: 20030602-20030730 (59 DAYS); UA 20040105-20040220 (46 DAYS)) UA 20040507-20040616, Pre-trial CONF 20040618-20040624 (6 DAYS); 20040816-200409 24 ( 39 DAYS)

NJP:
- 20010810 :      Article 86 ( Absent from appointed place of duty 20010706-20010806 (30 DAYS ) )
         Awarded: Suspended:

SCM:

- 20011010 :      Article 86 (UA from restriction), 8 specifications
         Article 87 (Missed movement 20010818)
         Article 91 : Spec 1 (Disrespectful in language toward SSgt) ; Spec 2: Disobeyed and NCO.
         Article 95 ( Wrongfully flee apprehension)
         Article 117 (Wrongfully used provoking words)
         Sentence:

- 20020122 :      Article 86 (UA 20011117-20011120 (3 DAYS))
         Article 91: Spec 1 (Disrespectful in language toward Cpl)
          Sentence: CONF 27 DAYS
SPCM:

- 20040331 :      Article 86 (UA from 20040105-20040 220 (46 DAYS) )
         Sentence: CONF 40 DAYS FOP

- 20040902 :      Article 86 (UA from 20040507-20040616 (30 DAYS))
         Sentence: CONF 60 DAYS FOP BCD
CC:

Retention Warning Counseling:

- 20010810: For not being at your appointed place of duty.

- 20040817 :       For violation of Article 85, in that you did on or about 20040105 without authority absent yourself from your appointed place of duty and stayed absent until 20040220.

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 :

Pertinent Regulation/Law

 A. Paragraph 1105, DISCHARGE ADJUDGED BY SENTENCE OF 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)(a), 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 .



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

Applicant’s Issues

 1. Nondecisional issues . D esires medical benefits.
2. Decisional issues. Believes his discharge should be for medical reasons vice misconduct.
3. Decisional issue. Seeks consideration for p ost - service conduct .

Decision


 Date: 20 0 9 1119        Location: Washington D.C .         R epresentation :

By a vote of the Characterization shall Discharge.
By a vote of the Narrative Reason shall COURT-MARTIAL .
Discussion

 With respect to a discharge adjudged by a court-martial case, 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. In response to the Applicant’s clemency request, relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts. The Applicant’s record of service included 6105 counseling warnings and for o f the Uniform Code of Mil itary Justice (UCMJ): Article 86 ( absent from appointed place of duty) . Additionally, the Applicant was the subject of SCM s for of the UCMJ. T he first SCM involved his violation of Article 86 ( UA from restriction), Article 87 (Missed movement), Article 91 (Disrespectful language to a SNCO), Article 95 (Wrongfully fled apprehension) and Article 117 (Wrongfully used provoking words) . The second SCM involved his violation of Article 86 (UA) and Article 91 (disrespectful language to a corporal). Finally, the Applicant was the subject of two SPCMs for violati ons of the UCMJ Article 86 (UA). As punishment for his second SPCM, the Applicant was awarded a Bad Conduct Discharge —a punitive discharge.

: (Nondecisional) The Applicant claims his current medical problems are related to his service in the Marine Corps and requests an upgrade of the characterization of his service so he can receive medical treatment from the Department of Veterans A ffairs . The Applicant believes h is misconduct was a result of his bi-polar disorder, depression, personality disorder and PTSD due to his being shot by his cousin on 7 November, 2003 , while in a leave status . The Applicant claims his pan ic attack s , sweats, nightmares and trembling, which he cites as the cause of his misconduct, all started after he was shot. Military medical records verify the Applicant was being seen by mental health professionals for anxiety, depression, heart palpitations, and a personality disorder. The NDRB noted the Applicant’s military record revealed that h e was the subject of one 6105 counseling, one NJP and two SCMs two years before he was shot. Despite the Applicant’s claims to the contrary, on 12 May 2004, Lt N.M Cxxxx, MC USNR, Staff Psychiatrist at MCB Quantcio VA evaluated the Applicant and said he did not manifest symptoms characteristi c of Bipolar Disorder. He was found not to be a danger to himself or to others. A lthough, the Applicant was on medicine to monitor his mood changes, a t no time was he found unfit for continued military service or found not responsible for his actions . The Applicant fails to provide any supporting documentation which ties his misconduct, either before or after the shooting incident , to his mental health status.

Medical Conditions and Misconduct : DoD disability regulations do not preclude a disciplinary separation when medical issues are also involved . 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 B oard for Correction of Naval Records (B CNR ) can grant this type of narrative reason change.
Issue 2 : ( ) . The Applicant’s case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency. After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice, m edical and s ervice r ecord e ntries, c ourt- m artial proceedings, d ischarge p rocess and evidence submitted by the Applicant, t he Board found clemency was not warranted and the sentence awarded the Applicant at his court-martial was appropriate for the offenses he committed.

Issue 3: Post - service. (Equity) RELIEF NOT WARRANTED. Besides the Applicant's statement on the DD Form 293, he failed to provide any additional documentation and evidence on his behalf to support a post-service conduct review. The Applicant's statements alone, without sufficient documentary evidence, are not enough to form a basis of relief. On page 4, Item 8, in the instructions for completion of DD Form 293, the Applicant is notified to submit evidence "which substantiate s or relate s directly to your issues in Item 6" (Issues: Why an upgrade or change is requested and justification for the request). Additionally, upon receipt of the Applicant's DD Form 293, the NDRB mails an acceptance letter that includes the Information Concerning Review Procedures, which discusses the submission of additional documents in paragraph 3, Submission of Evidence , and in the last section on page 4, Information Pertaining to a Review Based Upon Post-Service Conduct . The Applicant should have provide d documentation which could include but not limited to: letters of personal references and verifiable employment record /letter of recommendation from his employers; evidence of an alcohol - free life style (completion of rehab/proof he attended AA meetings); and certification of non-involvement with civil authorities, evidence of financial stability (home ownership/home rental history, credit card payments); documentation of community/church service and if married, a marriage certificate. The Applicant should be aware provision 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.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and discharge process, the Board found that clemency was not warranted . Therefore, the awarded characterization of service shall 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 , July 11, 2005 . The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews, Automatic Upgrades, and Post-Service Conduct .]




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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