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USMC | DRB | 2010_Marine | MD1000111

Original file (MD1000111.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20091009

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)       19940506 - 19941106     Active: USMC      19941107 - 19990415

Period of Service Under Review:
Date of Current Enlistment: 19990416     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20061122      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 07 D a y ( s )
Education Level:        AFQT: 62
MOS: 0351
Proficiency/Conduct M arks (# of occasions): ( ) / 2.0 ( )         Fitness R eports:

Awards and Decorations ( per DD 214):      (3) (2) (2) LoA (8) MM CoC

Periods of CONF :

NJP:

- 20060706 :      Article (UA 1145, 20060620-0635, 20060621)
         Article 134 (General order – California Vehicle Code 14601.1 (A)), 3 specifications
         Specification 1: Driving a vehicle with a revoked drivers license
         Specification 2: Driving a vehicle with no insurance
         Specification 3: Driving a vehicle with an expired registration
         Article 107 (False official statement)
         Awarded : Susp ended: for 45 days

SCM:     SPCM:    CC:

Retention Warning Counseling :

- 20040308 :       For my inability to pay my bills on time and uttering a check without sufficient funds. Specifically, my command has received 2 Star Card delinquent notices and a returned check notice. I was advised that this type of conduct displays poor judgment, lack of responsibility, and financial instability. I have been advised that this type of behavior will not be tolerated.

- 20060707 :       For your misconducts, specifically your repeated violations of UCMJ; you repeatedly violated Article 86 in that you absented yourself from your place of duty on 20060620 and 20060621; you violated Article 134 in that you violated California Vehicle Code 14601.1 (A) by driving a vehicle with a revoked drivers license, with no insurance, and with an expired registration; and you violated Article 107 in that you made a false official statement to a Military Police on 20060621. You were subsequently held responsible for your actions at NJP on 20060706.

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. Paragraph 6419, SEPARATION IN LIEU OF TRIAL BY 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)(b), 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 discharge characterization is inequitable , because his circumstances at the time of his misconduct were not fully considered.
2.       The Applicant contends P ost-Traumatic Stress Disorder (P TSD ) and his medications mitigate his misconduct.

Decision
Date: 20 10 1028          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. The Applicant’s record of service included 6105 counseling warnings and for o f the Uniform Code of Military Justice (U CMJ): Article 86 (Unauthorized absence , 1 specification), Article 107 (False official statement , 1 specification), Article 134 (General: Driving a vehicle with a revoked drivers license , 1 specification ) , Article 134 (General: Driving a vehicle with an expired registration, 1 specification), and Article 134 (General: Driving a vehicle with no insurance, 1 specification). The Applicant’s command convened a special court-martial for violation of the UCMJ Article 134 (General: Wearing unauthorized ribbons and devices). The Applicant requested separation in lieu of trial by court-martial (SILT) on 23 Oct 2006. P er regulations, in order to attain approval for a SILT request, service members must have been afforded the opportunity to consult with a qualified counsel and submit a written statement. They must also fully understand th e elements of the offense for which they were charged and that they must admit their guilt. They further certify a complete understanding of the negative consequences of their actions and that characterization of service could be Under Other Than Honorable Conditions, which might deprive them of virtually all veterans' benefits based upon their current enlistment, and that they might expect to encounter substantial prejudice in civilian life. The Applicant’s SILT was completed in accordance with regulations, and he was subsequently administratively separated with an Under Other Than Honorable Conditions characterization of service.

: (Decisional) ( ) . The Applicant contends his discharge characterization is inequitable , because his circumstances at the time of his misconduct were not fully considered. The NDRB carefully considered the Applicant’s service record, me dical record , and documents submitted by the Applicant . The NDRB found the Applicant’s circumstances at the time of his misconduct were taken into appropriate consideration by the command, but found the circumstances were insufficient to mi tigate his misconduct. Due to the serious nature of the misconduct, the NDRB found no relief to be warranted.

: (Decisional) ( ) . The Applicant contends PTSD and his medications mitigate his misconduct. The NDRB fully reviewed the Applicant’s service and medical record s , which revealed he had considerable physical challenges as well as mental health issues at the time of the misconduct . After careful consideration and debate, the NDRB found the premeditated nature of the misconduct was inconsistent with that normally associated with PTSD. The NDRB found the Applicant’s PTSD and issues with his medication were not sufficiently mitigating factors in his misconduct of record. 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 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 | 2010_Marine | MD1000111

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