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USMC | DRB | 2010_Marine | MD1000439
Original file (MD1000439.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)       200511 10 - 2005112 8     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20051129     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20091104      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 06 D a y ( s )
Education Level:        AFQT: 41
MOS: 0612
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle

Periods of UA / CONF :

NJP:

- 20070614 :       Article 92 (Dereliction in the performance of duties , failed to properly clear weapon during shift change )
         Article 134 (Firearm, discharge through negligence)
         Awarded : Susp ended:

SCM:

SPCM:

CC:

Retention Warning Counseling :

- 20070912 :       For failing to maintain positive control of weapons cards.

- 20080117 :       For drafting checks without sufficient funds.

- 20080317 :       For A rticle 86, UA 20080214 for 10 minutes; Article 92, violated a lawful general order by reporting to the gas chamber with running shoes vice combats boots.

- 20090324 :       For diagnosis of an Axis II Personality Disorder NOS on 20081029 and inability to adapt to military lifestyle due to lack of technical proficiency, professionalism, and maturity.




- 20090514 :       For your Personality Disorder , which is so severe that it adversely affects your ability to function effectively in a military and your unsatisfactory performance and conduct which is evidenced by your lack of reasonable effort and your failure to adapt to the Marine Corps environment.

- 20090805 :       For violation of Article 92, failure to obey order or regulation and Article 134, firearm discharging through negligence. In addition, you received four 6105 entries dated 20070912; 20080117; 20080317; and 20090514.

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 NDRB (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 NDRB (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

 1.       Nondecisional issues: The Applicant seeks an upgrade in characterization of service at discharge in order to access the new post 9/11 Montgomery GI Bill. The Applicant contends that his re-enlistment code of RE-4 should be RE-3C, as such, he seeks a change.

2.       D ecisional issues: The Applicant contends that his discharge characterization of service warrants an Honorable vice General (Under Honorable Conditions) characterization due to the minor nature of the misconduct over an extended period of his service.

Decision

 Date: 20 1 1 0201            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 identified one decisional issue regarding the equity of his discharge characterization of service. The NDRB completed a thorough review of the circumstances that led to the Applicant’s discharge, and the discharge process, to ensure the discharge met the pertinent standards of equity and propriety.

The Applicant’s record of service reflects entry into the service on a waiver for dependants . During his enlistment, the Applicant received 6 retention-counseling warnings per paragraph 6105 of the Marine Corps Separation and Retirement Manual (MARCORSEPMAN). Furthermore, the Applicant’s record of service was marred with a for o f the Uniform Code of Military Justice (UCMJ), to include:

•         Article 92 ( Failure to obey order or regulation – s pecifically, dereliction in the performance of his duties by failing to properly clear a weapon during shift change )
•         Article 134 ( Discharge of a firearm through negligence ) .

Based on the chronic minor disciplinary infractions committed by the Applicant, his command administratively processed him for separation pursuant to paragraph 6210.2 of the MARCORSEPMAN – M isconduct (M inor D isciplinary I nfractions ) . When notified of administrative separation processing using the procedure, the Applicant waived his rights to consult with a qualified counsel and elected to submit a written statement to the Separation Authority ; the Applicant did not submit any matters for consideration as he elected to do . The Applicant provided no additional documentation for the NDRB ’s consideration that was not already resident in his official military records .

: (Nondecisional) - The Applicant seeks an upgrade in characterization of service at discharge in order to access the new, post 9/11, Montgomery GI Bill. The Applicant contends that his re-enlistment code of RE-4 should be RE-3C; as such, he seeks a change. 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 (VA) who determine eligibility for post-service benefits, not the NDRB. The VA conducts its own determination of eligibility based on service records and input from an applicant upon their request. The Applicant should refer to the Veterans Administration website ( http://www1.va.gov/opa/Is1/1.asp ) for additional assistance.

The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities. Additionally, the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other branch of the Armed Forces, and is not authorized to change a reenlistment code. A n 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 . The Applicant is directed to the Addendum: specifically, the paragraph regarding Reenlistment/RE-code.

Only the Board for Correction of Naval Records (BCNR) may make changes to re-enlistment codes . The Applicant may petition the BCNR using DD Form - 149. When requesting this change, the Applicant should provide as much documentation as possible to support his reason for the change requested . The BNCR’s mailing address is: Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100. Further information may be found online at http://www.donhq.navy.mil/bcnr/bcnr.htm .

: (Decisional) ( ) . The Applicant contends that his discharge characterization of service warrants an Honorable vice General (Under Honorable Conditions) characterization due to the minor nature of the misconduct over an extended period of his service and that his suicidal attempt was the reason for discharge, not h is misconduct.

In accordance with the MARCORSEPMAN, separation by reason of Convenience of the Government (P ersonality D isorder ) is not appropriate when separation is warranted for any other reason ( i . e ., member meets minimum criteria for misconduct processing). The record of evidence reflects the Applicant met the requirements for processing due to Convenience of the Government (Personality Disorder) and Misconduct ( Minor D isciplinary Infractions ). As such, the command, which had originally notified the Applicant of separation processing for a Convenience of the Government basis, re-notified the Applicant that he was to be processed for separation in accordance with paragraph 6210.2 of the MARCORSEPMAN - Misconduct (Minor Disciplinary Infractions). This basis for separation was found to be legally sufficient and approved by the Separation Authority.

Since the Applicant was notified of separation due to both Convenience of the Government ( Personality Disorder ) and Misconduct (Minor Disciplinary Infractions) , the NDRB determined there was no impropriety . In both notification procedures, the Command recommended separation with a General (Under Honorable conditions) characterization of service at discharge. Therefore, neither discharge recommendation warranted the right to an administrative discharge board. The Applicant acknowledged his rights - in writing ; h e was afforded the opportunity to influence the Separation Authorit y decision via the submission of written matters for consideration . T he Applicant elected to exercise this right but failed to submit any matters .

T he Applicant’s service record clearly reflects a pattern of minor disciplinary infractions . He was provided ample opportunities to take corrective action in accordance with the Command’s effort to facilitate retention and rehabilitation. Failing to take corrective actions indicated that the Applicant was no longer f it for continued s ervice and discharge was warranted . Furthermore, t he evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be hel d accountable for his actions.

When a service has been honest and faithful, it is appropriate to characterize that service under honorable conditions. A General (Under Honorable Conditions) discharge is warranted when significant negative aspects of a member’s conduct or performance of duty outweighs the positive aspects of the member’s military record. The Applicant’s record of service was marred by six retention-counseling warnings for minor misconduct and a NJP for violations of the UCMJ. Violation of Article 92 is a serious offense, punishable by a punitive bad conduct or dishonorable discharge and up to confinement, if adjudicated and awarded as part of a sentence by a special or general court-martial. The command did not pursue a punitive discharge, but opted instead for the more lenient administrative discharge process after rehabilitative efforts had failed . In addition to the Applicant’s disregard for command orders and expected standards of conduct, he was counseled in writing for writing checks with insufficient funds and for his failure to adapt to the military lifestyle and lack of technical competence .

The Applicant’s service record reflects that he is a combat veteran, having served in combat operations in support of Operation IRAQI FREEDOM. The NDRB reviewed the Applicant’s medical records for any indications of mental health issues as a reason for mitigation. Due to a suicide attempt by self-inflicted gunshot wound, the Applicant was ordered to a 72-hour hold in the Mental Health Ward. During this hold, appropriately credentialed mental health care providers evaluated the A pplicant. The mental health care diagnosis was a mood disorder, not otherwise specified. The diagnosis further stipulated that the A pplicant wished to remain on active duty, was responsible for his actions, and that he was now deemed a low risk for harm to himself, or others. The Applicant was not diagnosed with Post - Traumatic Stress Disorder (PTSD). During the mental health 72-hour hold evaluation, the appropriately credentialed mental health care providers documented that the Applicant did not endorse or exhibit any PTSD symptoms and that t he Applicant further denied any symptoms of PTSD. The Applicant ’ s mental health issues were attributed directly to work related stress, family problems, financial difficulties, marital issues, and divorce and childcare issues.

In making a separation and characterization of service determination in the Applicant’s case, the Separation Authority considered the Applicant’s military screening checklist for PTSD and recommended that the Veteran’s Administration approve any future requests made by the Applicant for PTSD treatment. Based on a review of the Applicant’s medical records and the specified diagnosis of appropriately credentialed mental health care providers, the NDRB determined that PTSD was not a mitigating factor in the Applicant’s misconduct of record.

After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the NDRB discerned no impropriety in the discharge action or in the equity of the characterization of the Applicant’s service. By a majority vote of 5-0, the NDRB determined that the discharge was both proper and equitable; an upgrade or change would be inappropriate . Accordingly, 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 NDRB 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:// NDRB s.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 NDRB 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 NDRB 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 NDRB , 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 NDRB 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 NDRB 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 NDRB 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.

NDRB Membership: The names and votes of the members of the NDRB NDRB 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 NDRB s
 Attn: Naval Discharge Review NDRB
 720 Kennon Street SE Rm 309
Washington Navy Yard DC 20374-5023

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