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USMC | DRB | 2010_Marine | MD1000053
Original file (MD1000053.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20091005
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)       19860718 - 19861001     Active:            19861002 - 19900701

Period of Service Under Review:
Date of Current Enlistment: 1990 0 702     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 19950727      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 27 D a y ( s )
Education Level:        AFQT: 94
MOS: 5711
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      CoC JUA (2) LoA (3)

NJP:

- 19920722 :      Article (Derelict in performance of duties by willfully failing to properly dispose of military property)
         Article 86 (UA 0700, 19920716 - 0700, 19920720 ) , 4 days
          Awarded: Suspended:

- 19921025 :      Article (UA 0400, 19921001 - 0754, 19921006 ) , 5 days
         Article (Missed movement)
         Awarded: Suspended:

- 19930331 :      Article (UA 0715, 19930218 - 1230, 19930225 ) , 7 days
         Article (Drugs - amphetamphetamines/methamphetamines)
         Awarded: Suspended:

SCM:

SPCM:

- 19930602 :       Art icle (Drugs) , 3 specifications
         Specification s 1 -2 : Wrongfully use amphetamines/methamphetamines
         Specification 3: Wrongfully use cocaine
         Sentence : FOR 2 MONTHS (19930413-19930601, 50 DAYS) 4

CC:

Retention Warning Counseling :

- 19910505 :       For failure to keep your Armed Forces ID card in your possession at all times.

- 19920720 :       For my alcohol related incidents and subsequent Level III failure due to DUI dated 19920703.

- 19921218 :       For deficiencies in failure to show up to appointed place of duty on time, and not requesting permission prior to taking time off from work.


Administrative Corrections to the Applicant’s DD 214

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

          Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, should read: “ Certificate of Commendation; Joint Unit Award; National Defense Service Medal; Southwest Asia Service Medal with 2 Stars; Kuwait Liberation Medal; Combat Action Ribbon; Letter of Appreciation (3); Navy Achievement Medal; Navy Unit Commendation; Good Conduct Medal; Rifle Expert Badge (4) ”
         Block 18, Remarks, should read: “Continuous Honorable active service 19861002-19900701. ”
         “ (4) 920716-920719; (5) 921001-921005; (7) 930218-930224; (2) 930310-930311; (50) 930413-930601 ”

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:           Rehabilitation/Treatment:                  Criminal Records:       
         Personal Documentation :           Community Service:                References:     
         Department of VA letter:                  Oth er Documentation:    
                  Additional Statements :
         From Applicant:            From /To Representation:            From /To Congress m ember :        

Pertinent Regulation/Law

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 5, effective 5 March 1993 until 2 October 1996, Article 3640420, DISCHARGE OF ENLISTED PERSONNEL ADJUDGED BY SENTENCE OF COURT-MARTIAL.

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 .


A. Paragraph 1105, DISCHARGE ADJUDGED BY SENTENCE OF COURTS-MARTIAL , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16D), effective 27 June 1989 until 17 August 1995.

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.       The Applicant contends his combat experiences led to PTSD , which impacted his service and warrants consideration for upgrade.
2.       The Applicant seeks upgrade consideration based on his post-service conduct.

Decision

 Date: 20 1 1 0 406            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 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 identif ied two decisional issues for the Board ’s consideration . T he Board conducted a thorough review of the circumstances which led to punitive discharge and the discharge process to ensure discharge met the pertinent standards of equity. The Applicant’s record of service included 6105 counseling retention warnings (5 May 1991, Failure to maintain Armed Forces ID card at all times; 20 Jul 1992, alcohol related incidents and Level III alcohol rehabilitation treatment failure due to DUI on 3 Jul 1992; 18 Dec 1992, deficiencies in failure to show up to appointed place of duty on time and not requesting permission prior to taking time off from work), and for o f the Uniform Code of Military Justice (UCMJ): Article 86 ( Absence without leave, 3 specifications: 16-20 Jul 1992, 4 days; 1-6 Oct 1992, 5 days; 18-25 Feb 1992, 7 days); Article 87 ( Missing movement, unit exercise at 29 Palms CA , Oct 1992); Article 92 ( Failure to obey order or regulation, improperly disposed of atropine injectors, Apr 1992 ); and Article 112a (Wrongful use, possession, etc of controlled substance, methamphetamines, Feb 1993). The record of service also reflect s that the Applicant was subject to for violation of the UCMJ: Article 112a ( Wrongful use, possession, etc of controlled substance, 3 specifications, c ocaine and methamphetamine, Apr 1993 ). Based on the repeated illegal drug use offense(s) committed by the Applicant, command referred him to trial by special courts-martial (SPCM). On 2 Jun 1993, the Applicant was found guilty o f 3 specifications of violating Article 112 ( a ) of UCMJ and was adjudged reduction to E-1, confinement for two months, and a Bad Conduct Discharge (BCD).

The Applicant provided documentation which included: a personal letter to the NDRB, memorandum from counsel, Department of Veterans Affairs Letter, medical and service record excerpts, post-service medical record excerpts, verification of post-secondary education attendance, employer letters of reference, and character letters of reference. Though not submitted, documentation may have also included: evidence of a drug-free life style ; evidence of financial stability ; documentation of community or church service ; and marriage or child birth certificate s ( as applicable).

: (Decisional) ( ) PARTIAL . The Applicant contends his combat experiences led to PTSD , which warrants consideration for upgrade. With respect to a discharge adjudged by a court-martial case, the action of the NDRB is restricted to upgrades based on clemency (leniency). 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 reason for discharge, convicted by special court-martial, is appropriate. However, the NDRB also found the evidence of record , coupled with the Applicant’s sworn testimony, to contain sufficient mitigating or extenuating factors to offset the seriousness of the offenses for which the discharge was awarded. Testimony provided during the hearing revealed significant traumatic events the Applicant had been exposed to during his service in Operation Desert Storm in 1991 and Operation Restore Hope in Somalia in 1993 . The record of service documents an exemplary record of pre-deployment service which included graduation from USMC Recruit Training as Honor-Man with a meritorious promotion to Private First Class (PFC), strong performance in the Fleet Marine Forces reflected in performance evaluations and personal awards, and promotion to E-5 (Sergeant) with just over three years of service. The a vailable evidence clearly reflects a decrease in performance and conduct after return from Kuwait in 1991 , exacerbated by increasing post combat deployment alcohol abuse. After return from Somalia in 1993, the Applicant’s personal and professional life began to unravel, his ever increasing alcohol abuse turned to drugs , which led to the misconduct for which he was discharged. The service records document that while undergoing counseling and treatment in pre-trial confinement on 25 May 1993, a VA Psychologist diagnosed the Applicant with PTSD . The Applicant’s Defense Counsel was unable to present this issue as evidence in the trial, but did request the judges consideration as a mitigating factor in his summation. T reatment for substance abuse/dependence was offered to the Applicant, but no treatment or counseling was ever made available for the PTSD. After thorough review and consideration of the Applicant’s testimony , the overall record o f service , supporting documentary evidence submitted, the standards of discipline of the service and the time passed since awarding of the BCD, the NDRB determined that some d egree of clemency was warranted. Accordingly, the NDRB determined that an upgrade from Bad-Conduct Discharge to a General (U nder Honorable Conditions ) discharge to be appropriate.

: (Decisional) ( ) . The Applicant seeks upgrade consideration based on his post-service conduct. The NDRB considers post-service conduct in order to determine if the misconduct committed during active duty was indicative of the Applicant's character or was an aberration. 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. However, there is no law or regulation, which provides an unfavorable discharge be upgraded based solely on the passage of time or good conduct in the civilian life subsequent to leaving the service. Normally, to permit relief for a punitive discharge as a result of courts-martial, inequity must have been found to have existed during the punitive discharge process or significant, credible information brought forth which was previously unknown at the time of discharge . After completion of a careful and detailed examination of all the facts and circumstances surrounding the Applicant’s punitive discharge, the NDRB determined that this issue did not provide a basis for which relief could be granted. As such, r elief denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s testimony and summary of service, record entries , documentary evidence submitted by the Applicant , and the punitive discharge process, the NDRB found the discharge was proper and equitable at the time of discharge. However, in consideration of the significant mitigating facts and circumstances surrounding the Applicant’s service , the NDRB determined that clemency was warranted. Therefore, by a vote of 3-2 , the awarded characterization of service shall but the narrative reason for separation shall remain .

Having completed a personal appearance hearing before a discharge review board, the Applicant is no longer eligible for discharge review by the NDRB. The Applicant must now petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for any further review .


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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