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USMC | DRB | 2009_Marine | MD0902169
Original file (MD0902169.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20090729
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)       20040616 - 20040725     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20040726     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20080718      H ighest Rank:
Length of Service : Y ea rs M on ths 23 D a y ( s )
Education Level:        AFQT: 66
MOS: 6672
Proficiency/Conduct M arks (# of occasions): ( 13 ) / ( 13 )        Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle CoC

Periods of UA / CONF :

NJP:
- 20060914 :      Article (Failure to obey order or regulation - 2 specifications for wrongfully driving a motor vehicle while under the influence of alcohol , BAC .16% ) ,
         Awarded: Suspended:

- 20070629 :      Article (Unauthorized absence)
         Article (Willful disobedience of superior commissioned officer)
         Article (Failure to obey order or regulation - 2 specifications )
         Awarded: Suspended: ( vacated as of 20 July 2007 )

- 20080415 :      Article (Failure to obey an order or regulation by consuming alcohol as evidenced by your arrest by the San Diego Police Department for DUI, BAC .21% and hit and run )
         Awarded: Suspended:

SCM:
- 20071107 :      Article (Unauthorized absence, failure to go to appointed place of duty)
         Article (Failure to obey a lawfu l order, breaking restriction - 2 specifications )
         Sentence:

SPCM:

CC:
- 20080323 :       Arrested by San Diego Police Department for hit and run and DUI, BAC .21%



Retention Warning Counseling :
- 20060912 :       For driving under the influence of alcohol aboard MCAS Miramar, with a BAC of .16%.
- 20070629 :       For violation of Article 86, 91, and 92.
- 20070716 :       For violation of Article 90, 92, and 134.
- 20080417 : For violation of Article 92.
- 20080417 : For not being recommended for promotion due to pending separation.


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 6210, MISCONDUCT , 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 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. The Applicant seeks an upgrade for service benefits (medical).        
2. The Applicant contends his misconduct was due to PTSD , thus he was improperly discharged from the Marine Corps.       

Decision

 Date: 20 10 0603 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 g overnment al a ffairs unless there is substantial credible evidence to rebut the presumption, to include evide nce 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 included 6105 counseling warnings, for o f the Uniform Code of Military Justice (UCMJ): Article (Unauthorized absence), Article (Willful disobedience of superior commissioned officer) and Article (Failure to obey order or regulation - 5 specifications : DUI with a BAC of .16 % , disobeyed an order to be present for duty by the SgtMaj, failed to obey an order by a CWO4, DUI with a BAC of .24 % , and failure to obey an order by CO regarding his aftercare program by being arrested by civilian authorities ) ; and for of the UCMJ: Article (Unauthorized absence - failure to go to appointed place of duty) and Article (Failure to obey a lawful order by breaking restriction - 2 specifications: by willfully wearing civilian attire and consuming alcohol by sneaking out of the barracks and go to a bar off base, all while on restriction). Additionally, the Applicant was arrested by civilian law enforcement for a hit and run incident and his DUI with a BAC .21%, which resulted in his SCM. The Applicant also had a pre-service drug waiver for using marijuana thirteen (13) times prior to entering the Marine Corps, and acknowledged complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 17 May 2004 . Additionally, the Applicant was given an alcohol waiver for 4 “minor in possession of alcohol (16-18 years old)”, two o f which were dismissed . Based on the offenses committed by the Applicant, command administratively processed for separation. When notified of a dministrative separation processing using the procedure, the Applicant waived rights to consult with a qualified counsel and to request an administrative board , but did exercise his rights to submit a written statement.

: (Nondecisional) The Applicant seeks an upgrade for service benefits (medical). 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.
: (Decisional) ( ) . The Applicant contends his misconduct was due to PTSD, thus he was improperly discharged from the Marine Corps. The NDRB carefully examined all records available to the Board and the circumstances leading to the Applicant’s discharge. First, the NDRB analyze d the extent of the Applicant’s alcohol problem. Per a mental health intake evaluation, dated 1 August 2007, the Applicant revealed heavy use of alcohol beginning in the early teens and often drank to intoxication, to include endorsing blackouts. He was twice arrested for underage possession of alcohol (received an enlistment waiver) and continued heavy regular use of alcohol following enlistment. The NDRB opined that that Applicant had a alcohol problem prior to his enlistment and the only reason it did not manifest itself earlier was due to the fact he was in training (boot camp, MCT and MOS school) and Iraq (no alcohol permitted in country) for the first year and a half of his enlistment. In the same evaluation, he was diagnosed with alcohol dependence, which was in early remissio n in a controlled environment. The Applicant was counseled and punished numerous times due to alcohol. He was sent to Level III , a four-week residential treatment program, where his participation was deemed minima lly satisfactory by showing minimal effort in assignments, group participation, journal and workshops. He was required to attend Alcohol Anonymous (AA) meeting s and abstain from alcohol as part of his 12-month aftercare program. Yet, he chose to stop attending AA and keep drinking alcohol. The NDRB determined that the Marine Corps tried to help the Applicant, but he failed to help himself.

Secondly, the NDRB examined the Applicant’s pre and post deployment health assessment (PDHA) questionnaires and medical records to s ubstantiate his claim of PTSD. In both PDHA’s, the Applicant described his health as generally being “Very Good.” Again, per a mental health intake evaluation, dated 1 August 2007, the Applicant denied exposure to any particular trauma , but stated that he got bored and tired of the daily routine . When asked, “Did you see anyone wounded, killed or dead during this deployment?” and “During this deployment, did you ever feel that you were in great danger of being killed ?” the Applicant answered “NO” to both questions, which contradicts his most current statements. It was noted that the Applicant was diagnosed as being depr essed, which would be attributable to being reprimanded for his misconduct and his alcohol abuse. The Applicant was screened for Post Traumatic Stress Disorder (PTSD) twice, once on 25 April 2008 and the other on 9 June 2008. In both cases, the medical officer stated that the Applicant “does not meet the criteria for further evaluation for PTSD. ”

Lastly, i n the Applicant’s own personal statement, he contributed his misconduct to his alcohol abuse once he returned from Iraq. After his first NJP due to a DUI , which caused him to be reduced in rank to Lance Corporal; h e stated, “I found myself blaming the Marine Corps for it. I was so mad and depressed with the fact that my career had been halted that it only fueled my drinking . I continued drinking up to a bottle every day. I also continued to get into minor problems at work, but due to good NCO’s and SN CO’s who kept giving me chances, I stayed under the radar. Still blaming the Marine Corps instead of my self for my problems , I just took all those chances for granted.” The command tried it’s best to help the Applicant with his alcohol addiction, but after numerous chances and further acts of misconduct, the command could no longer condone his beha vior and was forced to separate him in order to maintain proper order and discipline. The NDRB determined that the Applicant’s misconduct was due to his own negligence and not a result of PTSD. Relief denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, medical and 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 Additi onal Reviews, Service Benefits 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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