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USMC | DRB | 2009_Marine | MD0902539
Original file (MD0902539.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20090917
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)       20020622 - 20021027     Active:            20021028 - 20061001

Period of Service Under Review:
Date of Current Enlistment: 20061002     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20070420      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 19 D a y ( s )
Education Level:        AFQT: 49
MOS: 3381
Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle , , (2), A FGHANISTAN C AMPAIGN MEDAL , IRAQ CAMPAIGN MEDAL, , , , LoA

Periods of UA :
Period of C ONFINEMENT : 20070104 – 20070209 (37 days)

NJP:     SCM:

SPCM:

- 20070104 :       Art icle (Assault , consummated by a battery – Domestic dispute )
         Article 92 (Violation of an MPO)
          Sentence : 45 days (20070104-20070209, 37 days) LETTER OF REPRIMAND

CC:

Retention Warning Counseling : 1

- 20070309 :       For domestic violence. Specifically on 20070222, you and your wife were in a verbal altercation that escalated into a domestic dispute.

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

         “ CONTINUOUS HONORABLE ACTIVE SERVICE FROM 021028 UNTIL 061001 ”

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. Paragraph 6210, MISCONDUCT of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), 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 .

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 s 128, 92 .



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

Applicant’s Issues

 1 .        Decisional issue: (Equity) : The Applicant contends that his discharge was too harsh and was not justified given his record of service , which was honorable apart from a single period of misconduct , which was related to marital/personal issues only .

Decision

 Date: 20 1101 13            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 NDRB 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. The Applicant entered active duty military service with a Marine Corps Recruiting Station Commanding Officer waiver for pre-service drug use (mari juana) . At the time of the Applicant’s discharge from the Marine Corps, he was serving on his second enlistment contract. The Applicant’s record of service includes one 6105 retention-counseling warning and no nonjudicial punishment for violation of the Uniform Code of Military Justice (UCMJ). However, the Applicant was subject ed to a trial by Special Court - Martial for violation of Article 128 (Assault, consummated by a battery) and Article 92 (Violation of a lawful order or regulation) of the UCMJ. Based on a pre-trial agreement between the Government and the Applicant, the Applicant pled guilty to the charges (with exceptions) in trial by judge alone. The Applicant was found guilty and adjudged 45 days of confinement, 45 days of restriction, a reduction in rank to E-3 (Lance Corporal), and he received a letter of reprimand. Upon release from confinement, the Applicant’s command further recommended he administratively be separated from the Marine Corps pursuant to paragraph 6210.6 of the Marine Corps Separation and Retirement Manual (MARCORSEPMAN) for Misconduct (Commission of a Serious Offense) . The command further recommended that he receive a General ( Under Honorable Conditions ) characterization of service upon discharge.

The Applicant ’s service record reflects that he is a combat veteran, having served honorably in both Afghanistan in support of Operation ENDURING FREEDOM (OEF) and in Iraq in support of Operation IRAQI FREEDOM (OIF). Furthermore, appropriately credentialed mental health care providers diagnosed the Applicant - in service - with Post - Traumatic Stress Disorder (PTSD) ; the Applicant continues to receiv e treatment for that diagnosis through the Department of Veterans Affairs.

 The Applicant provided no additional d ocumentation for the NDRB to consider in mitigation or to refute the NDRB’ s presumption of regularity in the conduct of governmental affairs. S ubmission of additional items for consideration alone does not guarantee an upgrade from an unfavorable discharge , as e ach discharge is reviewed by the NDRB on a case-by-case basis .

: (Decisional) ( ) . The Applicant contends that his discharge was too harsh and was not justified given his record of service , which was honorable apart from a single period of misconduct related to his marital/personal issues.

The Applicant was separated administratively , not by punitive action resultant from his trial by S pecial C ourt -M art i al . Despite a servicemember’s prior record of service , certain serious offenses, even though isolated, warrant separation from military service in order to maintain good order and discipline. The Applicant pled guilty - and was subsequently found guilty by a military trial judge - to misconduct that qualifie d as a serious offense in accordance with the UCMJ. Whenever a Marine is involved in misconduct, as described in paragraph 6210 of the MARCORSEPMAN , commanders are directed to process the Marine for separation - unless rehabilitation and retention is warranted . Characterization of service at discharge shall normally be U nder O ther T han H onorable conditions , but characterization as G eneral ( U nder H onorable C onditions) may be warranted in some circumstances.

The Applicant was found guilty at trial by court - martial and then, after his release from confinement, continued to have misconduct issues of the same nature as the charges in his trial by court - martial. The Applicant’s command recommend ed separation from the service due to a demonstrated lack of rehabilitation and his continued misconduct . Based on a review of the evidence and circumstances unique to this case, t he Applicant’s stipulation of facts at the trial by S pecial C ourt -M artial , and his continued misconduct of the very same nature, the NDRB determined there was sufficient evidence to support a basis for discharge due to the co mmission of a serious offense. The discharge was proper as issued . Relief denied.

The Applicant states an honorable character of service was demonstrated by his promotion to Sergeant, a warding of the Good Conduct Medal , and honorable tours of duty in both Afghanistan and Iraq , coupled with his approval and execution of a re-enlistment of 4 years . The NDRB identified that the Applicant’s first enlistment period was honorable , and it was not properly reflected on his certificate of discharge (DD Form 214). The NDRB will direct that the Commandant of the Marine Corps correct Block 18 of the Applicant ’ s DD-214 to reflect the mandatory comment that the Applicant had a period of continuous honorable service from 200 21028 to 20061001. However, the characterization of service received at discharge ( B lock 24 of DD-214) is determined by the quality of the member’s total performance of duty and conduct during the current enlistment period , including the reason for separation.

An Honorable characterization of service is warranted when the quality of a member’s service generally meets the standard of acceptable conduct and performance for N aval personnel, or is otherwise so meritorious that any other characterization of service would be clearly inappropriate. A General (Under Honorable Conditions) discharge is warranted when the quality of the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service record .

The commission of a serious offense usually results in a n U nder O ther T han H onorable C onditions c haracterization of service at discharge, though a characterization as G eneral ( U nder H onorable C onditions) may be warranted - in some circumstances . In accordance with the MARCORSEPMAN, o ther considerations may be given to the member’s length of service, grade, aptitude, and physical and mental condition when determining the characterization of service at discharge . The Applicant did not contend that his PTSD was a mitigating factor of his misconduct. A s a combat veteran, the NDRB reviewed th e Applicant’s PTSD diagnosis - in relation to his misconduct and the actions of the Separation Authority - for any mitigation or extenuating circumstances. Based on the absence of any documented adverse conduct in the record before his diagnosis of PTSD , the NDRB determined the Applicant’s diagnos is of PTSD was a mitigating factor associated with his in-service misconduct. However, the NDRB d id not consider the diagnosis of PTSD as a reason to absolve completely the Applicant of his misconduct .

Based on the Applicant’s record of service during the current enlistment , the NDRB determined the Applicant’s service was honest and faithful , but that significant negative aspects of his conduct did outweigh the positive aspects of his service record . The NDRB determined that an upgrade to an Honorable characterization of service at discharge would not be appropriate given the nature of the misconduct and the Applicant’s continued misconduct of the same nature following formal counseling and trial by S pecial C ourt -M artial. Furthermore, t he NDRB determined the characterization of the Applicant's discharge was equitable and was consistent with the characterization of discharge given others in similar circumstances; accordingly, relief in the form of an upgrade in the characterization of service at discharge is 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 Additional Reviews 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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