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USMC | DRB | 2010_Marine | MD1000642
Original file (MD1000642.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20091228
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)       20010105 - 20010916     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20010917     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20050916      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 00 D a y ( s )
Education Level:        AFQT: 67
MOS: 0431
Proficiency/Conduct M arks (# of occasions): /          Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle

Periods of UA / CONF :

NJP:

- 20040130 :       Article (Absence without leave), 4 specifications
                  Specification 1: Failed to attend remedial physical training, 20040121
                  Specification 2: Failed to attend remedial physical training, 2004012 2
                  Specification 3: Failed to attend remedial physical training, 2004012 3
                  Specification 4: Failed to attend remedial physical training, 2004012 6
          Awarded : (to E-2) (30 days) Susp ended:

- 20040503 :       Article (Failure to obey order), 20040423
         Article (Restriction , breaking), 20040423
         Awarded : Susp ended: (suspended 6 months)

- 2004 11 0 5 :      Article (Failure to obey order)
                  Specification 1: Failed to be at appointed place of duty, 20041028
                  Specification 2: Failed to be at appointed place of duty, 20041030
         Article ( Insubordinate conduct toward a Staff Sergeant ) , 20040930
         Article 92 ( Failure to obey order of a Staff Sergeant), 20040930
         Awarded: Suspended: (suspended 6 months)
SCM:

SPCM:

CC:


Retention Warning Counseling :

- 20040130 :       For violation of Article 86 UA. SNM failed to attend remedial PT to which he was assigned. SNM was counseled in writing on two occasions and still failed to attend a third and fourth time. SNM displayed lack of professionalism, judgment, dependability, and inability to conduct himself in a responsible and mature manner.

- 20040405 :       For violation of Article 86 UA. SNM failed to report to the UMA lot on 040316 for transport of equipment to 32 nd street, and missed formation aboard ship on 040323. Violation of Article 134, SNM was found “unfit for duty” by medical evaluation on 040316 by reason of drunkenness. SNM displayed lack of professionalism, judgment, dependability, and inability to conduct himself in a responsible manner. SNM still has not learned from a previous NJP and numerous counseling sessions that he is responsible and will be held accountable for his actions.

- 20041110 :       For my pattern of misconduct: Article 134, unfit for duty by medical evaluation; Article 86 x 4, unauthorized absence; Article 91, insubordinate conduct towards a non commissioned officer; Article 92, disobeyed a lawful order.

- 20041110: For my misconduct, specifically, my recent company level NJP for violation of articles 86 x 2, Article 91,
         and Article 92 of the UCMJ held on 05 Nov 2004.

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. Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 1 September 2001 until Present, Paragraph 1005, DISCHARGE FOR EXPIRATION OF ENLISTMENT OR FULFILLMENT OF SERVICE OBLIGATION .
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.       Applicant seeks an upgrade to obtain G . I . Bill education benefits.
 2.       Applicant seeks a change to re-enlistment code for re-enlist ment in the U.S. Armed Forces.
3.       Applicant contends the stress from personal issues led to alcohol abuse and the misconduct for which he received a General (Under Honorable Conditions) discharge and subsequent diagnosis of PTSD after separation from the Marine Corps .
4.       Applicant contends discharge is inequitable , because he was told he would receive an Honorable discharge upon his end of obligated service .
 5.       Applicant contends his post-service achievements are indicative of his true character.

Decision

Date: 20 1 1 0 3 03            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 identif ied three decisional issues for the Board’s consideration . T he Board complete d 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’s record of service included four Page 11 counseling remarks for: weight control (Sep 2004), pending nonjudicial punishment ( NJP ) (Nov 2004), lack of discipline (Feb 2005), and pattern of misconduct (Jul 2005). The record also contained 6105 retention counseling warnings for: (30 Jan 2004) lack of professionalism, judgment, dependability, and responsibility relating to four instances of u nauthorized absence (UA); (5 Apr 2004) violations of UCMJ Article 86, UA in failing to report to vehicle lot and missing formation aboard ship, and Article 134 being found unfit for duty due to drunkenness; (10 Nov 2004) pattern of misconduct to include violation of UCMJ Article 91, Insubordinate conduct toward a noncommissioned officer, and Article 92 Failure to obey an order; (10 Nov 2004) misconduct related to NJP conducted on 5 Nov 2004. Furthermore, the Applicant’s service records reflected commanding officer’s NJPs for o f the Uniform Code of Military Justice (UCMJ): Article 86 ( Absence without leave, 6 specifications: failed to attend remedial PT training on 21/22/23/26 Jan 2004; and failing to be at appointed place of duty on 28/30 Oct 2004); Article 91 ( Contempt, disrespect toward superior noncommissioned officer, a Staff Sergeant, in questioning his authority to give a lawful order, 30 Sep 2004); Article 92 ( Failure to obey an order, 2 specifications: relating to NJP punishment on 23 Apr 2004; and failing to obey an o r der from a Staff Sergeant on 30 Sep 2004 ) ; and Article 134 ( Breaking restriction , by leaving bounds of restriction and proceeding to the city of Oceanside , CA on 23 Apr 2004) . The medical and service records also revealed that the Applicant was diagnosed as alcohol dependent on 7 Oct 2007 and recommended for intensive outpatient rehabilitation treatment. The Board could not determine whether the Applicant attended or completed rehabilitation. The Applicant also had pre-service enlistment waivers for illegal marijuana use prior to entering the Marine Corps and exceeding weight standards (69” at 205 lbs). Alt hough the Applicant’s record of misconduct justified administrative separation from the Marine Corps for a pattern of misconduct, his command chose to allow him to reach the end of his enlistment/end of active obligated service. Based on his performance and total record of service, including a deployment to Operation Iraqi Freedom (OIF) , the Applicant was discharged with a General (Under Honorable Conditions) character of service.

: (Nondecisional) The Applicant seeks an upgrade to obtain G . I . Bill education benefits. The U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB. The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities . As such, t here 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.

: (Nondecisional) The Applicant seeks a change to re-enlistment code for re-enlistment in the U.S. Armed Forces. 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 B oard for Correction of Naval Records 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.
: (Decisional) ( ) . The Applicant contends the stress from personal issues led to alcohol abuse and the misconduct for which he received a General (Under Honorable Conditions) discharge and subsequent diagnosis of PTSD after separation from the Marine Corps. There is no evidence in the record, nor did the Applicant provide any evidence , to indicate he attempted to u se the numerous services available for service members who undergo personal problems during their enlistment such as the Navy Chaplain, Medical or Mental Health professionals, Navy -Marine Corps Relief Society, Family Advocacy Programs, or even the Red Cross. The NDRB recognizes that serving in the U.S. Marine Corps is challenging. However, members of the Naval service are expected to uphold the high standards of conduct as evidenced by the Marine Corps Core Values of Honor, Courage , and Commitment, no matter the mission or environment in which assigned. Moreover, the NDRB found no evidence within the record that supported the Applicant’s claim that his misconduct was a result of personal stressors or stress induced PTSD. Just prior to return from OIF, the Applicant completed a post-deployment health assessment (PDHA) in which he states “No” to questions regarding exposure to or experiences of: vehicles burning, chemical/biological/radiological weapons, wounded in action (WIA) or killed in action (KIA), direct combat or engagement with his weapon, in great danger of being killed, and whether he felt the need for assistance with stress related issues. Additionally, his only reported medical complaints were of athlete’s foot , ankle pain, ringworm, and lost dental retainers . His medical records contained several consults after his return from deployment that noted complaints of hip pain/tendonitis /bursitis ( Dec 2004, 14 Feb 2005), hip and lower back pain ( 22 Oct 2004, 19 Apr 2005 ) , and being significantly out of height/weight standards -- 69” at 231 lbs (22 Oct 2004). Prior to his discharge, he receive d a pre-separation physical exam (3 Apr 2005) , which again documented ongoing complaints of hip and lower back pain, but no other physical or mental issues were annotated. The A pplicant was found “ fit for separation ” with no referral requirement for further evaluation or treatment of new medical issues or complaints.

The G overnment enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial , credible evidence to support his issue. The NDRB found no medical diagnosis in the record to support the Applicant ’ s claim nor did the Applicant produce any medical diagnosis by competent medical authority to support his claim that personal stressors he encountered while in service were causal in the misconduct for which he was awarded a General (Under Honorable Conditions) discharge . While he may feel that personal stressors and/or PTSD were the underlying cause of his misconduct, the record , with no evidence otherwise, reflects his conduct was willful , that he was responsible for his actions, and demonstrated he was unfit for further service as evidenced by his assigned re-enlistment code (RE-4) . Therefore, the Board determined this issue to be without merit and did not provide a basis in which relief could be granted. Relief d enied.

Issue 4: (Decisional) ( ) . The Applicant contends discharge is inequitable , because he was told he would receive an Honorable discharge upon his end of obligated service . The character of service awarded a Marine at the time of discharge is made by the Separation Authority who is directly in the Marine’s chain of command. Guidance on the proper characterization of service is provided in MCO P1900.16F, the Marine Corps Separation and Retirement Manual (MARCORSEPMAN) , which states a Marine may be awarded a General ( Under Honorable Conditions ) discharge “... if a member’s service has been honest and faithful, but significant negative aspects of the member’s conduct or performance outweigh positive aspects of the member’s military record . ” The Applicant’s record contained repeated Page 11 counseling entries (4), 6105 retention warning counseling entries (3), and three NJP s within his four - year enlistment period . His command could have opted to administratively separate the Applicant for a P attern of M isconduct or C ommission of a S erious O ffense but opted instead to retain him and allow him to continue service in the Marine Corps until completion of his active duty service obligation . After consideration of the Applicant’s performance and entire record of service, the Separation Authority awarded him a General (Under Honorable Conditions) discharge in accordance with the MARCORSEPSMAN in effect at the time of separation. The Applicant’s conduct, which forms the primary basis for determining the character of service, reflects the Applicant failed to meet the high standards of conduct expected of all Marines, especially considering his experience and length of service, and falls short of what is required for upgrade to an Honorable character of service. R elief d enied.


Issue 5 : (Decisional) ( ) . The Applicant contends his post-service achievements are indicative of his true character. The Applicant provided documentation that included: a personal letter to the Board; Department of Veteran s Affairs Decision Letters (Dec 2006 and Jun 2009); Congressional Representative correspondence; employer letters of reference; personal letters of reference; and a character reference letter. Though not submitted by the Applicant, documentation could have included: a ; evidence of alcohol rehabilitation or an alcohol-free lifestyle; evidence of financial stability; certification of non-involvement with civil authorities; college or vocational school transcripts; documentation of community or church service; and marriage or child birth certificates (as applicable). 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 an aberration. However, there is no law or regulation that provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. After careful examination of all the available documentation, to include the post-service evidence submitted by the Applicant, the Board found that the discharge character of service was equitable , and this issue did not provide a basis for which relief could be granted.

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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