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USMC | DRB | 2010_Marine | MD1001355
Original file (MD1001355.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20100507
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)       20020426 - 20020923     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20020924     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20070205      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 12 D a y ( s )
Education Level:        AFQT: 36
MOS: 0331
Proficiency/Conduct M arks (# of occasions): ( ) / ( 13 )          Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle , Pistol , , , (X2), , ,

Periods of UA : 20030620 (1 day); 20050103 - 20050123 ( 21 days ); 20060515 – 20060519 (4 days); 20061106 - 20070123 ( 79 days )
CONF:

NJP:

- 20030707 :      Article (UA) 20030620 - 20030621, 1 day)
         Awarded: Suspended:

- 20050304 :      NFIR [Extracted from MCTFS Legal Action Screen ]
         Awarded: RIR (all other NFIR) Suspended: NFIR
- 20060724 :      Article (UA 20060515 - 20060519, 4 days)
         Awarded: Suspended:

SCM:     SPCM:    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:

 “ (1) 20030620; (21) 20050103-20050123; (4) 20060515-20060518; (79) 20061106-20070123 ”

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:                  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 .

C. The Marine Corps Separation and Retirement Manual, (MCO P1900.16F, effective 1 September 2001 until Present, Paragraph 6210, MISCONDUCT.

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 86 (in excess of 30 days) .



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

Applicant’s Issues

 1 .       Decisional issues : The Applicant contends that his misconduct was post - service in Iraq and that his diagnosis of Post - Traumatic Stress Disorder is mitigation for his misconduct; as such, Applicant contends that he warrants reconsideration of his characterization of service at discharge.

Decision

 Date: 20 1 1 0224         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 Applicant provided his Department of Veterans Affairs service compensation rating decisional document for consideration in mitigation and extenuation of his contentions, but did not provide an y specific documentation to rebut and presumption of regularity in governmental affairs by the NDRB . The Applicant identif ied one decisional issue regarding equitability to the NDRB. The NDRB completed a thorough review of the circumstances that led to his discharge, and the discharge process, to ensure the discharge met the pertinent standards of both equity and propriety.

The Applicant’s record of military service included no 6105 retention counseling warnings found in his official record, but nonjudicial punishments (NJPs) for violations o f the Uniform Code of Military Justice (UCMJ). The Applicant’s violations include: (1) Article 86 (Absent Without Leave ; specifically – absenting himself from his appointed place of duty without proper authority ); (2) an NJP for unknown charge that resulted in a reduction in rank (specifics of charges were not found in record, but history of NJP is document ed in the MCTFS legal action records and corroborated with corresponding reduction Proficiency and Conduct markings in his service record ) . The Applicant ’ s record of service includes other periods of unauthorized absence : 21 days (20050103 – 20050123) and 79 days (20061106 – 20070123) , which were not addressed in any punitive or non-punitive proceedings of record.

The Applicant is a combat veteran, having served in direct combat operations as an Infantryman in support of Operation IRAQI FREEDOM from 19 September 2005 to 12 April 2006. The Applicant was awarded the C ombat A ction R ibbon for individual actions against enemy forces while deployed in the Al-Anbar Province, Iraq. Additionally, the Applicant deployed to Okinawa , Japan in support of Marine Force s Pacific Unit Deployment Program from 09 March 2003 to 04 April 2004 .

Issue 1: (Decisional) ( ), . The Applicant contends that his misconduct was post - service in Iraq and that his diagnosis of Post - Traumatic Stress Disorder is mitigation for his misconduct; as such, the Applicant contends that he warrants reconsideration of his characterization of service at discharge. 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 Applicant submitted no evidence to rebut this presumption. The Applicant’s record of service included three nonjudicial punishments for various violations of the UCMJ and two other periods of extensive Unauthorized Absence (79 days and 21 days) . The Applicant’s record of service includes being dropped from the unit roles upon being declared a deserter on 06 December 2006. Due to the Applicant ’ s unauthorized absence in excess of 30 days, a Deserter/Absentee Wanted by the Armed Forces W arrant was issued to civilian law enforcement entities on 13 December 2006 . The Applicant surrendered himself to military custody on 24 January 2007, ending his deserter status.

In accordance with chapter 6 of the Marine Corps Separation and Retirement Manual (MARCORSEPMAN), the Applicant ’ s record of service documents an established Pattern of Misconduct (paragraph 6210.3) and the Commission of a Serious Offense (paragraph 6210. 6) . The Applicant’s command did not pursue punitive actions or involuntary separation; the Applicant was permitted to complete his obligated service contract.

Per paragraph 1004 of the Marine Corps Separation and Retirement Manual, characterization of service is the recognition of the quality of a Marine’s performance and conduct. An Honorable characterization of service is the highest quality of characterization and is appropriate when the quality of the Marine’s service h as met the standards of acceptable conduct and performance of duty for military personnel. A General (Under Honorable Conditions) discharge is warranted when the quality of the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service record. Performance and conduct forms the primary basis for determining characterization of a Marine’s service and are determined pursuant to MCO P1610.7 (Performance Evaluation System), MCO P1070.12 (Individual Records Administration Manual (IRAM)), and the customs of the service .
The Applicant’s post - service medical evaluations by the Department of Veterans Affairs (VA) document a diagnosis of service - connected Post - Traumatic Stress Disorder with a compensatory VA disability rating of 100%, retroactive to his discharge from active duty military service. In considering the Applicant’s diagnosis of PTSD as mitigation to his misconduct, the NDRB considered that the Applicant has demonstrated a dischargeable pattern of misconduct prior to his combat service in Iraq. Thought the Applicant did have continued misconduct after his combat service, the record clearly reflects misconduct that could warrant an involuntary discharge before deployment. As such, the NDRB determined that the PTSD was not a mitigating factor in the determination of his overall characterization of service at discharge. Additionally, the Applicant was formally counseled - in writing - at the time of his separation from the service in regards to his final characterization of his service and his Commanding Officer’s non-recommendation for reenlistment.

As directed by paragraph 1004 of the MARCORSEPMAN, characterization of service will be honorable for Marines with average proficiency marks of 3.0 or higher and average conduct marks of 4.0 or higher. Failure of a Marine to achieve either of these standards is evidence of significant negative aspects, outweighing all but the most meritorious military records. Marines who do not achieve these standards should not receive an honorable discharge. In reviewing the Applicant’s official service record, the NDRB noted that the Applicant’s average Proficiency and Conduct marks in service were 4. 1 / 3.5 , respectively. Based on these marks, as directed by the Marine Corps Separation and Retirement Manual, the C ommand was obligated to award the Applicant with a General (Under Honorable Conditions) discharge.

Although the command c ould have pursued either administrative or punitive action to address the A pplicant’s misconduct in accordance with the MARCORSEPMAN, it did not. I n doing so, the Command allowed th e Applicant to be separated upon completion of his active obligated service with a characterization of service as warranted by his record of service: General (Under Honorable Conditions) . The NDRB determined that the Applicant’s PTSD was not a mitigating factor for his misconduct of record and that the characterization of service he received at discharge was warranted, equitable, and consistent with that received by others with similar circumstances at the completion of their required active service. Therefore, after reviewing the Applicant’s issues, supporting documents and the evidence of record, the NDRB discerned no impropriety or inequity with the Applicant’s separation and the characterization of service , as issued , was warranted. 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 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 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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