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USMC | DRB | 2010_Marine | MD1000843
Original file (MD1000843.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20100217
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)       19881020 - 19890716     Active:   ( ELS )     19890717 - 19890804 UNCH
         (DEP)   19900802 - 19900903 COG                     1990090 4 - 19950526 HON
                                             19950527 - 19980219 HON

Period of Service Under Review:
Date of Current Enlistment: 199 8 0 220     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20040826      H ighest Rank:
Length of Service : 5 Y ea r ( s ) M on th ( s ) 28 D a y ( s )
Education Level:        AFQT: 54, 70
MOS: 1833, 8411
Proficiency/Conduct M arks (# of occasions): N/A          Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle (5) Pistol (2) (3) LoA CoA (2) MM

Periods of UA / CONF : CONF 2002060 7 - 20030111 (219 days)

NJP:     SCM:

G CM:

- 20041007 :       Art icle (Absence without leave), 20020603-20020604
         Article 95 (Escape from custody), 20020603
         Article 116 (Breach of peace), 20020531
         Article (Communicating a threat), 20020531
         Sentence : (14 months) Suspended: CONF in excess of 9 months (for 12 months)

CC:

Retention Warning Counseling :

Administrative Corrections to the Applicant’s DD 214

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

         “YEARS: 5, MONTHS: 10; DAYS: 28”
         Block 12d, Total Prior Active Service, should read: “YEARS: 7, MONTHS: 5, DAYS: 17”

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:                  Other Documentation:    
                  Additional Statements:
         From Applicant:           From/To Representation:           From/To Congress member:        

Pertinent Regulation/Law

 A. Paragraph 1105, DISCHARGE ADJUDGED BY SENTENCE OF 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)(a), 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 .

D . The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 95 , 134 .


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

 1.       Applicant contends his punitive discharge was improper due to not receiving proper medical treatment for mental health issues prior to prosecution and conviction at trial by court-martial.

Decision

 Date: 20 1 1 03 24            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 Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. With respect to a discharge adjudged by a court-martial case, 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. In response to the Applicant's clemency request, relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts. The Applicant's case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency. Th e Board complete d a thorough review of the circumstances that led to discharge to ensure discharge met the pertinent sta ndards of equity. The current enlistment period , which commenced 20 Feb 1998, reflected no 6105 counseling retention warnings or commanding officer’s nonjudicial punishment. The record did indicate one General Court-Martial (GCM) f or of the UCMJ: Article 86 (Absence without leave, 2 days, 3-4 Jun 2002, after evad ing two SNCOs detailed to escort Applicant to/from Article 39a proceedings , remained UA until apprehended by local police for erratic driving ) , Article 95 (Escape from custody, 3 Jun 2002, evaded two SNCOs detailed to escort Applicant to/from Article 39a proceedings ) , Article 116 (Bre a ch of peace, 31 May 2002, 5 - hour late-night event involving a large response force from local sheriff ’s office due to drunken, belligerent, and threatening behavior) and Article 134 (Communicating a threat, 3 1 May 2002, via phone and in person to local Sheriff and Sheriff’s deputies) . Based on the offenses committed by the Applicant, command chose not to process him for administrative separation, but opted instead to refer him to trial by court-martial. The Applicant pled and was found guilty of the aforementioned violations of the UCMJ on 7 Oct 2002 and sentenced to a reduction in rank from E-6 to E-1, confinement for 14 months (confinement in excess of 9 months suspended for 12 months), and a B ad Conduct discharge . After completion of appellate review by the Navy and Marine Corps Court of Criminal Appeals, the Applicant was discharged from the Marine Corps on 26 Aug 2004.

: (Decisional) ( ) . The Applicant contends his punitive discharge was improper due to not receiving proper medical treatment for mental health issues prior to prosecution and conviction at trial by court-martial. The Board conducted an exhaustive review of the Applicant’s service records, medical record excerpts, and the G eneral Court-Martial Record of T rial to determine whether this issue had merit under the standards of equity applied in review of courts-martial cases. The Board noted the Applicant had two previous honorable periods of enlistment in which his service records indicated strong performance and conduct in his military occupational specialty (MOS) and being listed on the Director’s Honors List at Recruiters School. The service and medical records indicated the Applicant had several documented incidents of alcohol abuse and depression starting in the Fall of 1998. The depression and alcohol abuse seemed to escalate through a very difficult tour on r ecruiting duty , which commenced in 1999 and concluded in his relief from recruiting duties in early 2000 due to poor performance (not meeting recruiting mission), falsification of reports, significant personal issues affecting his work, and a mental health evaluation (MHE)/recommendation from the VA Medical Center in Minneapolis, MN that was precipitated by a suicidal ideation the Applicant had voiced over the phone to a command family readiness coordinator . In the MHE, dated Nov 1999, the psychiatric physician diagnosed the Applicant with Adjustment Disorder with Mood Disturbance (AXIS I) and Vocational Stressors (AXIS IV), and noted that the service member seems to be a good Marine, that his personal problems were treatable, but his “rigid problem solving skills limit his adaptability in this duty assignment” and recommended he be removed from recruiting duty.


In May 2002, the Applicant was investigated for serious allegations of misconduct that were never referred to trial or NJP ; the Applicant claims in his letter to the Board that another service member was actually found guilty of the wrongdoing. The record s indicate the stress of the investigation and the ongoing personal stressors at home led him to a point in which he lost control in a late night incident ( 31 May 2002 ) in which he drunkenly called 911 and requested that the local Sheriff SWAT team come to his home and shoot him within 30 seconds of arrival or he was going to start shooting people himself, to include the Sheriff and his deputies. After approximately five hours of negotiation, the Applicant unloaded his weapons and turned himself over to the Sheriff. The Applicant was returned to military custody and admitted to the Naval Hospital Psychiatric ward on 1 Jun 2002 for evaluation. On 3 Jun 2002 , the Applicant escaped from the custody of two command SNCO escorts who were escorting the Applicant from UCMJ Article 39a proceedings. The Applicant made his way home to see his wife, then purchased a large amount of medications and alcohol and proceeded to the woods to drink and overdose the medications in order to commit suicide. He awoke the next day confused and proceeded to drive his personal vehicle when he was apprehended by local authorities responding to his erratic driving. The Applicant was returned to military control, placed in the Naval Hospital for detoxification and mental health evaluation, and then placed in pre-trial confinement. After completion of a Manual for Courts-Martial Mental Competency Exam (RCM 706) , in which the Applicant was found to have: Adjustment Disorder with mixed Anxiety and Depressed Mood , no severe mental disease , and that he had “sufficient mental capacity to understand the nature of proceedings and to conduct or cooperate in his defense , ” he stood trial at General Court-Martial where he pled and was found guilty of the four UCMJ violations specified above.

The Board conducted a detailed review of the available evidence, to include the Applicant’s Summary of Service, Medical and Service Record Entries, Court-Martial proceedings, Discharge Process and evidence submitted by the Applicant, and determined this issue to be without merit, that clemency was not warranted , and the sentence awarded the Applicant at his court-martial was appropriate for the offenses he committed. Relief d enied.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, General Court-Martial record of trial and the punitive discharge process, the Board found the discharge was proper and equitable. 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 for additional information.


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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