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USMC | DRB | 2010_Marine | MD1001237
Original file (MD1001237.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20091222
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)       19890801 - 1989 1024     Active:   19891025 - 19931024
                                    20040122 - 20050731
Period of Service Under Review:
Date of Current Enlistment: 20070312     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20080815      H ighest Rank:
Length of Service:
         Inactive:        Year(s) Month(s) 23 D ay(s)
         Active:  Year(s) Month(s) 00 D ay(s)
Education Level:        AFQT: 38
MOS: 6672/3043 /0311
Proficiency/Conduct M arks (# of occasions): /                   Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle (5) Pistol ( 2 ) ( 2 ) (K) (SA) (3) SMCRM (3) MM(2) AFRM (M device / bronze h our glass)

Periods of UA / CONF : 20070425-20071222 (242 days) / 20071222-20071227 ( 6 days); 20071228-20080106 (10 days); 20080613-20080806 (56 days)

NJP:
- 20070419 :      Article (Failure to obey an order or regulation - 3 specifications)
         Article (Fraternization with a junior Marine)
         Awarded : (60 days) Susp ended:

SCM:             CC:      Retention Warning Counseling :

SPCM:
- 20080613 :       Art icle (Unauthorized absence for 242 days, terminated by apprehension)
         Art icle (Breaking restriction)
         Sentence : RIR E-6 90 days REPRIMAND

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:           Substance Abuse:                  Criminal Records:       
         Family/Personal Status:                   Community Service:                References:     
         Additional Statements :
                   From Applicant:            From Representat ion :               From Congress member :    
         Other Documentation :     

Pertinent Regulation/Law

 A. Paragraph 6419, SEPARATION IN LIEU OF TRIAL BY 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)(b), Presumption Concerning Court-Martial Specifications .

 C. 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 86.


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

Applicant’s Issues

 1. The Applicant contends his discharge is inequitable based on his record of service (awards, combat service, fitreps, etc).
2 . The Applicant contends his discharge is inequitable because his misconduct was due to PTSD.
3. The Applicant believes his post-service conduct is worthy of consideration.
Decision

Date: 20110 707 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 Board did complete 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 for o f the Uniform Code of Military Justice (UCMJ): Article (Failure to obey an order or regulation - 3 specifications) and Article (Fraternization with a junior Marine) and for of the UCMJ: Article (Unauthorized absence for 242 days, terminated by apprehension) and Article (Breaking restriction). Based on the offenses committed by the Applicant, command administratively processed for separation. The NDRB did not have the Applicant’s administrative separation package to determine whether or not the Applicant exercised or waived rights to consult with a qualified counsel, to submit a written statement for consideration by the separating authority, and to request an administrative board or a General Court-Martial Convening Authority review.

 : (Decisional) ( ) . The Applicant contends his discharge is inequitable based on his record of service ( Applicant’s issues 2,4,5,6,8,9 ). Despite a Marine’s prior record of service, certain serious offenses warrant separation from the Naval Service in order to maintain proper order and discipline. A n Under Other Than Honorable Conditions discharge is warranted when significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record. The NDRB noted that the Applicant’s service ha d been honorable for the majority of his career . However, for his most current enlistment from 12 March 2007 to 15 August 2008, his service was properly characterized based on his departure from the conduct expected from a Marine , which included a 242-day UA, fraternization with a junior Marine, and failing to obey orders . 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. Relief denied.
: (Decisional) ( ) . The Applicant contends his discharge is inequitable because his misconduct was due to his PTSD (Applicant’s issues 1,7,10 ). When reviewing a discharge, the NDRB does consider the extent to which a medical problem might affect an Applicant’s performance and ability to conform to the military’s standards of conduct and discipline. The NDRB generally does not consider the circumstances surrounding the Applicant’s stated condition, the implied correct/incorrect diagnosis, nor the medical treatment given to the Applicant to be of sufficient nature to exculpate the Applicant’s misconduct. In fact, the NDRB sees no connection between the Applicant’s misconduct and his medical condition , particularly in his stated excuse that fraternization with a junior Marine was because of his PTSD . The NDRB opined that the Applicant’s stress was self-induced by his infidelity ( a dultery and fraternization) and total disregard for Marine Corps orders and regulations and was not a result of PTSD. Regarding the UA charge, six days prior to going in a UA status for 242 days until he was apprehended, the Applicant was put on 60 days restriction due to an NJP. For a S enior Non-Commissioned Officer to think he could just break restriction without repercussions is incomprehensible. Regarding the reason he went UA ( children being very ill ), the first note indicated a sick child in November 2006 and the second note indicated a minor benign medical condition in January 2007, yet the Applicant went UA in April 2007 six days after being put on restriction. The NDRB determined there was no emergency that required him to leave and break restriction. Relief denied.

: (Decisional) ( ) . The Applicant believes his post-service conduct is worthy of consideration (Applicant’s issue 3). Although the Applicant provided character references, he failed to provide any additional documentary evidence on his behalf for post-service consideration. To warrant an upgrade , the Applicant’s post - service efforts need to be more encompassing. The Applicant could have produced evidence as stated in the Post-Service Conduct paragraph in the A ddendum with the full understanding completion of these items alone does not guarantee an upgrade. Based on the limited post - service documentation, the NDRB determined the awarded characterization of service shall remain Under Other Than Honorable Conditions. Relief denied.
Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, medical and 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, Employment/Educational Opportunities, Service Benefits 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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