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USMC | DRB | 2009_Marine | MD0901371
Original file (MD0901371.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20090421
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)       20050429 - 20050607     Active:  

Period of Service Under Review:
Date of Enlistment: 20050608     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20070723      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 16 D a y ( s )
Education Level:        AFQT: 79
MOS: 0341
Proficiency/Conduct M arks (# of occasions): (6) / (6)          Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle Pistol

Periods of UA : 20070605 – 20070611 (7 days)
CONF : (129 days) dates not found in record

NJP:
- 20060602 :       Article 113 ( Sleeping while on guard duty )
         Awarded: Suspended:

- 2006121 4 :      Article 92 ( Fail ure to obey a lawful order )
          Awarded: Suspended:

SCM:

SPCM:

CC:

Retention Warning Counseling :

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:
         “ 2005 06 08 ”
          “ Under Other than Honorable Conditions ”
         “ 20070605 - 20070611 ”

The NDRB will recommend to the Commandant of the Marine Corps that the DD 214 be corrected as appropriate.
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. 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 of the UCMJ, Article 92 (Failure to obey an order or regulation), Article 113 (Misbehavior of a sentinel) and Article 121 (Larceny).



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

Applicant’s Issues

 1. The Applicant seeks reinstatement of service benefits.
2. The Applicant seeks a reentry ( RE ) code change for reenlistment opportunities.
3. The Applicant believes he earned a Combat Action Ribbon.
4. The Applicant believes his discharge was improper and inequitable.
5. The Applicant believes his discharge should be based primarily on the medical recommendation of personality d isorder .

Decision

 Date: 20 090706         Location: Washington D.C.       R epresentation :

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

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 governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant . T he Board did complete a thorough review of the circumstances which led to discharge and the discharge process to ensure discharge met the pertinent sta ndards of equity and propriety. The Applicant’s record of service inclu ded non - judicial punishments (NJP s) for o f the Uniform Code of Military Justice (UCMJ): Article 92 (Failure to obey an order or regulation: drove privately - owned vehicle on base although his privileges were suspended for a year) and Article 113 (Misbehavior of sentinel or lookout: sleeping while on duty guarding four military age males at an observation post in Iraq). T he Applicant appeared b efore a trial by general court-m artial (GCM) for o f the UCMJ: Article 128 (Assault), Article 134 (Indecent acts) and Article 134 (Obstructing justice). He was found not guilty and was acquitted of all three charges. Additionally, the command made reference to recent larceny charges (violation of UCMJ: Article 121) committed by the Applicant in a recommen dation for his separation . Based on the offenses committed by the Applicant, command administratively processed for separation. When notified for administrative separation p rocessing, the Applicant waived rights to consult with a qualified counsel ( although he did see counsel: Captain V_ ) , to submit a written statement for consideration by the separating authority, an d to request an administrative b oard.

: (Nondecisional) The Applicant seeks reinstatement of 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.
Issue 2: (Nondecisional) The Applicant seeks a RE-code change for reenlistment opportunities. 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.
Issue 3 : (Nondecisional) The Applicant believes he earned a Combat Action Ribbon during his 7 months in Iraq . T he Applicant may petition the Board for Correction of Naval Records ( BCNR ) , 2 Navy Annex, Washington, DC 20370-5100 , for further review on this matter .
Issue 4: (Decisional) ( ) . The Applicant contends his discharge was improper and inequitable. He believes the primary reason for his separation violates the basis of “double jeopardy” in that he can’t be discharged based on charges that were dropped or otherw ise dealt with. The NDRB determined that the Applicant’s trial at a GCM was not relevant or at anytime mentioned in the discharge documentation . The non-GCM related v iolations of Article 92 (Failure to obey an order or regulation), Article 113 (Misbehavior of a sentinel) and Article 121 (Larceny –this charge was not adjudicated) are considered serious offenses which could have resulted in a punitive discharge and confinement if adjudicated and awarded as part of a sentence by a spec ial or general court- martial. The command did not refer the Applicant for a court - martial but opted instead for an administrative discharge. The command decided to primarily discharge the Applicant due to commission of a serious offense ( COSO ); the NDRB opined it was mainly based on the pending larceny charges . A Marine may be processed for separation for the commission of a serious military or civilian offense und er the following circumstances: t he specific circumstances of the o ffense warrant separation and a punitive discharge would be authorized for the same or a closely related offense under the UCMJ. A military or civilian conviction is not required for discharge under this provis ion. The NDRB determined that the Applicant’s conduct warranted separation and that the command properly executed his separation from the Marine Corps. The Applicant’s issue is without merit. Relief denied.

Issue 5: (Decisional) ( ) . The Applicant contends his discharge should be based primarily on the medical recommendation of both the psychiatrist and psychologist who diagnosed him wit h chronic post-traumatic stress disorder (PTSD), borderline personality d isorder and other issues. The commander stated, “His personality disorder and recent charges of larceny, although not adjudicated, combine to create conditions where his continued presence will adversely affect the good order and discipline of the command.” The division psychiatrist diagnosed the Applicant on 11 October 2006, with borderline personality disorder ( PD ) , that he is not mentally ill, he’s responsible for his behavior and that the PD existed prior to enlistment and will cont inue beyond military discharge. The division psychiatrist ma de no mention of PTSD in his recommendation. On 30 January 2007, a psychologist (no further information) made an initial diagnostic impression that the Applicant suffers from PTSD, chronic major depressiv e disorder, PD not otherwise specified and other observations. The NDRB could not verify the final diagnosis , and requested the medical records twice (May and August 2009) , in order to do so. The NDRB never received the records . Despite the lack of complete medical records, the NDRB did note that t he Applicant was recommended for separati on due to PD and COSO . The Applicant is advised that w hen there are two reasons for separation (medical conditions and m isconduct ), regulations stipulate that separations for misconduct take precedence over potential separations for other reasons. Thus, the c ommand action to separate him due to COSO was proper . Relief denied.

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 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. The Applicant is directed to the Addendum, specifically the paragraphs titled Additio nal Reviews , Service Benefits, Reenlistment/RE-code 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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