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USMC | DRB | 2009_Marine | MD0901656

Original file (MD0901656.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20090527

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)       20010209 - 20010731     Active:

Period of Service Under Review:
Date of Current Enlistment: 20010801     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20070911      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 16 D a y ( s )
Education Level:        AFQT: 31
MOS: 3531
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness Reports:

Awards and Decorations ( per DD 214):      Rifle (IRAQ) (IRAQ)
         (2) (NAVY)

NJP:

- 20020927 :      Article (Disobey a lawful order) , 3 specifications
         Specification 1: Under age drinking with two 18 yr old civilians.
         Specification 2: Hard liquor found in SNM’s barracks room.
         Specification 3: Being involved in a motorcycle accident that violated his, “Restriction of Liberty Privileges.”
         Article (Drunken or reckless driving – involved in an accident in his pov, SNM was intoxicated)
         Awarded: Suspended:

- 20050114 :      Article (UA – on or about 20050105 from appointed place of duty)
         Article (Disobey a lawful order – by driving on base with a suspended driver’s license)
         Awarded: Suspended:

SCM:

SPCM:

- 20050526:      Article (UA – from appointed place of duty on or about 20050204)
         Article (False official statement – intent to deceive on or about 20041022)
         Article (Drugs – marijuana), 3 specifications
         Specification 1: On or about 20041130.
         Specification 2: On or about 20041220.
         Specification 3: On or about 20050222.
         Article (Larceny – steal property of some value on or about 20040415)
         Sentence: BCD CONF 6 MONTHS (20050408 – 20050701, 85 days)
         CA’s Action: Confinement for period of 5 months is approved. Executi on of that part of the sentence extending to confinement in excess of 90 days is suspended for 12 months. Accused will be credited 48 days confinement against sentence. The terms of the pretrial agreement, the deferment of all unexecuted confinement is hereby rescinded.

CC:

Retention Warning Counseling:

- 20020305 :      For violations of articles 86 and 92. Leaving base during second week of training.

- 20040610 :      For violation of article 86 on 20040416 from 0600 – 1630.

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. Decisional issues . The Applicant’s misconduct is due to lack of medical and mental health assistance for untreated post-traumatic stress disorder ( PTSD ).

Date: 20 10 0331 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 Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. 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 case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency. The Applicant’s record of service included 6105 counseling warnings, , and one special court-martial (SPCM) for o f the Uniform Code of Military Justice (UCMJ) . The first NJP on 20020927 involved violations of A rticle (Disobey a lawful order , 3 specifications : u nder age drinki ng with two 18-year- old civilians , h ard liqu o r found in his barracks room, and b eing involved in a motorc ycle accident that violated his “Restriction of Liberty Privileges ” ), and Article (Drunken or reckless driving – involved in an accident in his privately-owned vehicle & he was intoxicated) . The second NJP occurred on 20050114 for o f the UCMJ , Article ( Unauthorized absence (UA) on or abo ut 20050105 from appointed place of duty) , and Article (Disobey a lawful order – by driving on base with a suspended driver’s license ) . The Applicant was the subject of a SPCM on 20050526 for violations of UCMJ, Article (UA from appointed place of duty on or about 20050204) , Article (False official statement – intent to deceive on or about 20041022) , Article (Dru gs – marijuana , 3 specifications o n or about 20041130, 20041220, and 20050222 ), and Article (Larceny – steal property of some value on or about 20040415 ). He was reduced in rank to E-1, confined, and given with a Bad Conduct discharge.

Issue 1 : (Decisional) ( ) . The Applicant claims his explosive behavior , which led to his misconduct , was due to his not receiving proper medical care for PTSD ; and he attempted to sel f -medicate with drugs and alcohol . Review of the Applicant’s medical and court-martial records show the Applicant was under continuous medical care for acute a lcohol abuse from 25 August 2002 until his May 2005 release from active duty awaiting appellate review of his court-martial conviction . The Applicant first deployed to Iraq from February 2003 to August 2003, and redeployed a second time (departure date not in records) . H owever, i n late March 2004, t he Applicant was medivac k ed from Iraq for “ angry outbursts and throwing rocks at Iraqis ” and the clinical psychologist r ecommended a dministrative s eparation due to unsuitability for mili tary service. The doctor stated although he is in not in danger to himself or to others, he cannot serve in a combat zone . No other subsequent mental health d octor made this recommendation, and there is no evidence the Applicant was ever processed for an administrative s eparation. A medical record e ntry dated 13 May 2004, showed the Applicant was taking Zoloft since Feb ruary 2003 for depression ; he was not suicidal ; and exhibited good impulse control. It was also noted he was alcohol dependent (was drinking a fifth of liquor every night to “ escap e ” ) and his PTSD symptoms were resolving. Medical record entries dated 10 June 2004 , show the Applicant had switched to Celexa for his depression and was still classified as alcohol dependent. On 14 August 2004, medical records reveal the Applicant was taking Lexapro for his PTSD, was under marital stress and still alcohol dependent, but “ overall he is good to go . ” Medical record entries on 24 Sept ember and 12 October 2004 , state d he has improved and was getting along with his wife “ most of the time . ” Additionally, the doctor noted he is improved, not suicidal and denies nightmares or flashbacks. The Applicant was convicted of three driving under the influence ( DUIs ) violations during his enlistment. Throughout this entire post- deployment period, the Applicant continued to meet monthly with a mental health professional.

D uring November and December 2004 and February 2005 , the Applicant used marijuana . Consequently , h is unit referred him t o a SPCM on 13 April 2005. He participated in and successfully completed Intensive Outpatient Level II Alc ohol Rehabilitation training from 4-14 April 2005. Medical record e ntries dated April 2005 note the Applicant wa s taking Ambien to help him sleep , ha d low self- e steem, increased anxiety and had strange dreams. The Applicant was court-martial ed on 26 May 2005. Review of the Applicant’s court-martial records show the military judge was aware that the Applicant was under medical c are for PTSD at th e time of his offenses and at t he time of his trial . Judicial review of the Applicant’s S PCM state d that a lthough his PTSD was proper evidence of extenuation and mitigation, it did not render the Applicant’s guilty pleas improvident. This means, t he Applicant was fully aware of his actions when he pled guilty to his court-martial offenses and his PTSD did not invalidate the g uilty pleas. Considering this, the NDRB felt relief was not warranted.

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 BAD CONDUCT 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 .

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 Disable d American 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 their 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 | MD0901656

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