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USMC | DRB | 2010_Marine | MD1000818
Original file (MD1000818.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20100129
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)       20020430 - 20020512     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20020513     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20040406      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 24 D a y ( s )
Education Level:        AFQT: 59
MOS: 0341
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):     

Periods of CONF :

NJP:

- 20030529 :       Article 86 (Absent from morning muster)
         Article 92 (Drinking alcohol while under the legal age of 21)
         Awarded : Susp ended:

- 20030804 :       Article 92 (Violate a lawful order ), 2 specifications.
         Specification 1: C onsuming alcohol while under the age of 21 .
         Specification 2: C onsuming alcohol while on liberty risk .
         Article 128 (Assault)
         Article 134 (Drunk and disorderly)
         Awarded : CCU 30 days Susp ended:

- 20031212 :       Article (Consume alcohol while under the legal drinking age)
         Article 107 (False official statement)
         Awarded : Susp ended:

- 20040218 :       Article 89 (Disrespectful towards a Commissioned Officer, comportment, tone, making offensive hand gestures)
         Article 90 (Willfully disobeyed a Superior Commissioned Officer, continuing to disobey direct orders)
         Article 91 (Insubordinate conduct, acting in a vulgar manner , and refusing to cooperate with medical personnel)
          Awarded : Susp ended:

SCM:

SPCM:

CC:

Retention Warning Counseling :

- 20030804 :       For recent NJP for consuming alcohol underage.

- 20040218 :       For recent NJP for violation of articles 89, 90, and 91 of the UCMJ.



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 s eeks t o use the Montgomery GI Bill to attend school .
2.       Decisional issues : (Equity) Applicant claims that he is now disabled due to Bi-polar disorder and possible Post - Traumatic Stress Disorde r, a n undocumented post - service diagnosis that the Applicant believes he may have suffered from during his period of service , when it went unrecognized . Applicant infers that this undiagnosed condition may have contributed to his misconduct and subsequent discharge characterization of service .

Decision

Date : 20 10 08 27           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 one decisional issue to the Board. T he Board complete d a thorough review of the circumstances, which 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 6105 counseling warnings regarding his conduct and retention or possible legal ramifications if he failed to take corrective actions. Additionally, the Applicant’s record of service included separate for the following o f the Uniform C ode of Military Justice (UCMJ):

Article 86 - Unauthorized a bsence - absent from his appointed place of duty (morning muster) ;
Article 90 - Assaulting or willfully disobeying superior commissioned officer , willfully disobeyed a known superior commissioned officer , and continued disobedience to such direct orders ;
Article 91 - Insubordinate conduct toward a warrant officer, noncommissioned officer, or petty officer and i nsubordinate conduct - acting in a vulgar manner and refusing to cooperate wi th medical personnel ;
Article 92 - Failure to obey lawful order or regulation : 2 specifications - c onsuming alcohol while under the age of 21 and consuming alcohol while on assigned liberty risk program , Okinawa , Japan;
Article 107 - False official statement - lied to the Duty Noncommissioned Officer regarding his age to consume alcohol in the barracks while underage ;
Article 128 - Assault - did physically strike another Marine ;
Article 134 - Disorderly Conduct, d runkenness ; drunk and disorderly at the Camp Hansen E-club and involved in a physical altercation .

The Applicant ’s record also contained numerous pre-service w aiver s for enlistment in the Marine Corps: (1) pre-service drug use, specifically, using marijuana prior to entering the Marine Corps ; (2) Tier II educational applicant waiver ; (3) law violation of a serious offense (DUI) ; and (4) , l aw violation of a minor non-traffic offense (public drunkenness).

Based on the severity of offenses committed by the Applicant , and the pattern of misconduct established by the Applicant while in service , command administratively processed for separation under P aragraph 6210.3 (Misconduct - Pattern of Misconduct) of the Marine Corps Separation and Retirement Manual . When notified of the a dministrative separation process using the procedure, the Applicant waived right s to consult with a qualified counsel, to submit a written statement, or to request an administrative board . While in service, the Applicant had no combat service and participated in one seven-month unit deployment to Okinawa, Japan with subsequent off-island training deployments .

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 an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. The Applicant provided a single post- service document for consideration by the NDRB - a confirmation of social security benefit payments for unknown, undocumented reasons. This single document is insufficient to warrant an upgrade.

: (Nondecisional) A pplicant s eeks relief by an upgrade in service characterization to use the Montgomery GI Bill benefits to attend school. This is an issue which the Board cannot form the basis of relief for the Applicant, or the Board does not have the authority to grant the relief for which the Applicant has petitioned. The Applicant is directed to the Addendum : specifically , the paragraph regarding the The U.S. Department of Veterans Affairs (VA) , who determines eligibility for post-service benefits, not the NDRB. There is no requirement, or law, that grants re-characterization solely on the issue of obtaining veterans benefits. This issue does not serve to provide a foundation upon which the Board can grant relief.

: (Decisional) ( ) . The Applicant’s request for a review of his discharge infers that an undiagnosed disability - Bi-polar disorder - and possible Post - Traumatic Stress Disorder in service were contributing factors to his demonstrated pattern of misconduct . Given these contributing factors, the Applicant seeks an upgrade in the characterization of his service from Under Other Than Honorable Conditions to Honorable based on equity.

 The government 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 and credible evidence to support his issue . The Applicant contends to have been diagnosed with a Bi-polar disorder disability, post discharge, and infers that he may suffer from Post - Traumatic Stress Disorder from his period of service. The NDRB found no medical diagnosis in the record to support the Applicant ’ s claim s of Bi-polar disorder or PTSD , nor did the Applicant produce any medical diagnosis by competent medical authority to support his claim. The Applicant’s only submitted documentation was a statement from the Social Security Administration verifying that he was receiving some form of financial compensation from them. A review of the Applicant’s medical record indicates treatment for minor routine aliments, a pre-existing condition of high blood pressure, and his diagnosed condition of alcohol abuse by the Head, Alcohol Rehabilitation Department, Substance Abuse Counseling Center, MCB, Camp Butler, Okinawa, Japan (DSM-IV, Axis I - 305.00). Aside from the alcohol abuse treatment s , there are no documented concerns for mental health treatment or indicators of PTSD in the Applicant ’ s military records . The Applicant ’ s military service record contains no combat deployments or any contingency operations and no indications of contact with death or physical maiming.

While the Applicant may feel that his post - service diagnosis was the underlying cause of his misconduct, the record clearly reflects a pattern of willful misconduct and a demonstrat ion that h e 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 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. In the absence of corroborating medical documentation, the NDRB did not consider the claim s of post - service diagnosis of Bi-polar Disorder or PTSD a s a mitigating factor associated with the Applicant’s in - service misconduct. The A pplicant’s pattern of misconduct was directly related to his continuous abuse of alcohol, which is well - documented in his service record, including two pre-service civilian convictions for Driving under the Influence (DUI) and Drunkenness in Public . The Applicant was provided both directed outpatient counseling and managed care along with in-patient hospitalization for treatment of his alcohol abuse , as requested, prior to discharge.

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, 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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