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USMC | DRB | 2010_Marine | MD1000434
Original file (MD1000434.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20091120
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)       20050210 - 20050213     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20050214     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20071019      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 06 D a y ( s )
Education Level:        AFQT: 44
MOS: 0311
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle

NJP:

- 20051014 :      Article (UA - morning formation )
         Article 91 ( Insubordinate conduct toward warrant officer, noncommissioned officer , or petty officer)
         Article 92 (Failure to obey order or regulation - to sign out in the duty logbook for liberty)
         Awarded: Suspended:

- 20060302 :      Article (Assault)
         Awarded: Suspended:

- 20061121 :      Article (UA 0731 - 2130, 20061113)
         Awarded: Suspended:

- 200708 29 :      Article (UA) , 2 specifications
         Specification 1: 0700, 20070720 - 0700, 20070723
         Specification 2: 0700-1100, 20070726
         Awarded : Susp ended:

SCM:

- 20071001 :       Art icle (Disrespect to a noncommissioned officer)
         Article 92 (Disobedience of order by missing restriction muster)
         Article 134 (Breaking restriction)
          Sentence : (20070913 - 20071006, 24 days)

SPCM:   CC:



Retention Warning Counseling :

- 20051014 :       For your incident, which resulted in NJP on 20051014.

- 20060303 :       For assault.

- 20061121 :       For your absence without leave.

- 20070315 :       For causing physical and permanent damage to both government and personal property other than your own by triggering a fire extinguisher system in your barracks room .

- 20080829 :       For pattern of misconduct based on your four (4) nonjudicial punishments for violating numerous A rticles of the UCMJ and commencement of administrative separation proceedings.

Administrative Corrections to the Applicant’s DD 214

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

         “ MISCONDUCT ”
         “ (3) 20070720 - 20070723; (24) 20070913 - 20071006"

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. 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.       Nondecisional issues : Applicant seeks relief by an upgrade in his characterization of service at discharge in order to access Montgomery GI Bill benefits to attend school.

2.       Decisional issues : (Equity) The Applicant contends that the characterization of his military service at discharge was inequitable due to in - service diagnosed PTSD , which was a contributing factor to his pattern of misconduct . As such, based on mitigation due to PTSD, and his faithful combat service, the A pplicant seeks relief through an upgrade to an Honorable characterization of service.

Decision

 Date: 20 1 1 0113 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 governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Applicant identified one decisional issue to the Board. The Board completed a thorough review of the circumstances that led to discharge, and the discharge process, to ensure discharge met the pertinent standards of equity and propriety.

The Applicant enlisted in the Marine Corps with a pre-service waiver for drug use , specifically, using marijuana at least prior to entering the Marine Corps. The Applicant’s record of service is marred with five 6105 retention-counseling warnings regarding his misconduct and possible discharge or punitive or administrative legal ramifications if he failed to take corrective action. Additionally, the Applicant’s record of service included for the following o f the Uniform Code of Military Justice (UCMJ):

•         Article 86 - Unauthorized Absence - 4 s pecifications : A bsent from his appointed place of duty and absenting himself from his command without authority (3 days and 1 day)
•         Article 91 - Insubordinate conduct toward a warrant officer, noncommissioned officer, or petty officer
•         Article 92 - Failure to obey lawful order or regulation
•         Article 128 - Assault; did physically strike another Marine .

In addition, the Applicant received a summary court martial for violation of Article 91 (Insubordinate conduct toward a noncommissioned officer), Article 92 ( D isobedience of a lawful order by missing restriction muster), and Article 134 (Breaking r estriction). Based on the severity of the offenses committed by the Applicant, and the pattern of misconduct established by the Applicant while in service, command administratively processed for separation pursuant to paragraph 6210.3 of the Marine Corps Separation and Retirement Manual (MARCORSEPMAN): Misconduct - Pattern of Misconduct. When notified of the administrative separation process using the notification procedure, the Applicant exercised right to consult with a qualified legal counsel but did not choose to submit a written statement to the Separation Authority or to request an administrative hearing board.

The Applicant ’ s official service record documents that he was a combat veteran, having served in Operation IRAQI FREEDOM and that he received a Combat Action Ribbon for his personal actions on 08 May 2006 in the Al-Anbar province of Iraq. Furthermore, the Applicant was diagnosed – in service – with Post - Traumatic Stress Disorder (PTSD). Post service, the Applicant’s diagnosis of PTSD was re-affirmed by the Department of Veterans Affairs (VA); the Applicant was assigned an overall disability rating of 100% for PTSD (Service Connected, Gulf War incurred) and Traumatic Brain Injury (TBI) (Service Connected, Gulf War incurred).
 The NDRB is authorized to consider post-service factors 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. However, 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 in civilian life , subsequent to leaving the service. The Applicant provided post-service document ation for consideration by the NDRB to include a personal statement to the NDRB, confirmation of VA ratings and benefit payments , and college transcripts.

: (Nondecisional) - Applicant seeks relief by an upgrade in his characterization of service at discharge in order to access Montgomery GI Bill benefits to attend school. There is no requirement or law that grants re-characterization solely on the issue of obtaining veterans educational benefits. As such, this issue does not serve to provide a foundation upon which the Board can grant relief. Additionally, 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 solely to a determination of the propriety and the equity of a discharge. The Applicant is directed to the Addendum : specifically, the paragraph regarding the U.S. Department of Veterans Affairs , who determine s eligibility for post-service benefits. The VA conducts its own determination of eligibility based on service records and input from an A pplicant upon their request. The Applicant should refer to the Veterans Administration website ( http://www1.va.gov/opa/Is1/1.asp ) for additional assistance.

: (Decisional) ( ) . The Applicant contends that the characterization of his military service at discharge was inequitable due to in - service diagnosed PTSD , which was a contributing factor to his pattern of misconduct . As such, based on mitigation due to PTSD , and his faithful combat service, the A pplicant seeks relief through an upgrade to an Honorable characterization of service.

While the Applicant may feel that his diagnosis of PTSD was the underlying cause of his misconduct, the record clearly reflects a pattern of willful misconduct (2 NJPs and 2 6105 retention warnings) that preceded the Applicant’s combat service. Upon returning from his combat deployment, the Applicant continued a pattern of willful misconduct by absenting himself from his unit , being disrespectful to seniors, and disregarding lawful orders and regulations . The Applicant’s actions demonstrat ed t hat the C ommand ’ s efforts to rehabilitate and retain the A pplicant had failed and that he was unfit for continued military service. The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions.

The Applicant was properly notified of the pending separation action and the chain of command ’ s recommendation that he receive a n Under Other Than Honorable Conditions characterization of service at discharge . T he Separation Authority (Commanding General, 3d MarDiv) determined that the basis for separation was substantiated by a preponderance of the evidence and that separation from the service was warranted. However, giving due consideration to the Applicant’s service to his Nation in time of war, his diagnosis of PTSD, and a desire to ensure the Applicant remained eligible for VA assistance and compensation benefits after service , the Separation Authority directed that Applicant be discharged with a General ( Under Honorable Conditions ) characterization of service. 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. An Under Other Than Honorable Conditions discharge is warranted when a member engages in conduct involving one or more acts or omissions that constitute a significant departure from the conduct expected of members of the Naval Service. The NDRB found the evidence of record did not contain sufficient mitigating or extenuating factors to offset the seriousness of the offenses for which the discharge was awarded. The Applicant’s misconduct preceded his combat service and his diagnosis of PTSD. Furthermore, the NDRB determined that the evidence of record substantiated a discharge characterization of service of Under Other Than Honorable Conditions had the Separation Authority determined it warranted - this characterization of service would have been equitable and consistent with the characterization of discharge given others in similar circumstances .

Based on a review of the evidence and circumstances unique to this case, the NDRB determined there was sufficient evidence to support a basis for discharge due to Misconduct - Pattern of Misconduct and that the characterization of service at discharge was more than equitable . Moreover, t he NDRB determined that t he Applicant’s characterization of service at discharge gave due consideration to the Applicant’s d iagnosis of PTSD and his combat service , and was more than equitable . As such, an upgrade to Honorable is not warranted . Relief denied.
Summary: After a thorough review of the available evidence, to include the Applicant’s documentation, 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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