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USMC | DRB | 2010_Marine | MD1001405

Original file (MD1001405.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20100513

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)       20051223 - 20060116     Active:

Period of Service Under Review:
Date of Current Enlistment: 20060117     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20080522      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 19 D a y ( s )
Education Level:        AFQT: 36
MOS: 0341
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle

Periods of UA / CONF : / 20080411-20080425 ( 15 days)

NJP:
- 20071210 :       Art icle 92 (Failure to obey an order or regulation by operating vehicle on base while privileges revoked)
         Article 134 (General A rticle: operated a motor vehicle while intoxicate d and refused breathalyzer test)
         Awarded : Susp ended:

- 20080222 :       Art icle 92 (Failure to obey an order or regulation - 2 specifications)
         Article 111 (Drunken or reckless operation of a vehicle)
         Article 134 (Breaking restriction )
         Awarded : Susp ended:

SCM:
- 20080411 :       Art icle 92 (Failure to obey an order or regulation - 2 specifications : consuming alcohol while on restriction )
         Art icle 134 (Breaking restriction - 2 specifications )
         Sentence :

SPCM:

CC:

Retention Warning Counseling :

- 20080222 :       For failure to obey an order or regulation (x2) and for driving while intoxicated (BAC .14) with base driving privileges revoked.

- 20080306 :       For violation of Art 92 x 2: While on restriction, consumed alcohol and went to commissary without permission.

Administrative Corrections to the Applicant’s DD 214

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

         “ MARCORSEPMAN PAR 6210.6 ”

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:          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 6210, MISCONDUCT of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), 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 .

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 s of the UCMJ, Article s 92 and 111 .

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

Applicant’s Issues

Decisional Issues: The Applicant contends that his characterization of service at discharge was inequitable; his misconduct was mitigated by Post - Traumatic Stress Disorder (PTSD) symptoms and subsequent diagnosis.

Decision

Date: 2011 1019 Location: Washington D.C. R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall .

Discussion

In accordance with U.S. Code, Title X, Section 1553 (d)(1), the Naval Discharge Review Board included a member who is a physician, clinical psychologist, or psychiatrist. In accordance with section 1553 (d)(2), the service secretary expedited a final decision and accorded the case sufficient priority to achieve an expedited resolution.

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 identified one decisional issue to the NDRB for consideration. Additionally, the NDRB completed a thorough review of the circumstances that led to the Applicant’s discharge, and the discharge process, to ensure the discharge met the pertinent standards of equity and propriety.

The Applicant entered active duty military service at age 19 on a four-year contract with a guarantee of Infantry training. He entered the service with waiver to enlistment conditions or standards due to pre-service illegal drug use (marijuana). The Applicant’s record of military service further documents that he is a combat veteran, deploying with an Infantry Battalion to conduct combat operations in the Al-Anbar Province, Iraq in support of Operation IRAQI FREEDOM (OIF) from April 2007 to Oct 2007 (OIF 16-08). The Applicant’s record of service documents 6105 retention-counseling warnings. Moreover, it also documents two non-judicial punishments (NJPs) for violations of the Uniform Code of Military Justice (UCMJ): specifically, Article 92 (Failure to obey an order or regulation - 3 specifications: operating vehicle on base while privileges revoked (x 2) and leaving Battalion area while on restriction without permission), Article 111 (Drunken or reckless operation of a motor vehicle (BAC 0.14%)), Article 134 (Breaking restriction), and Article 134 (General Article: operated a motor vehicle while intoxicated and refused breathalyzer test). Additionally, the record of service documents one summary court-martial for of the UCMJ: Article 92 (Failure to obey an order or regulation - 2 specifications by consuming alcohol while on restriction) and Article 134 (Breaking restriction - 2 specifications). Based on the numerous and repetitive offenses committed by the Applicant, the command administratively processed for separation. When notified of administrative separation processing using the notification procedure, the Applicant waived rights to consult with a qualified counsel, to submit a written statement for consideration by the separating authority, and to request an administrative hearing board be held in order to present his case for retention and characterization.

(Decisional Issue) (Propriety/) PARTIAL . The Applicant contends that his characterization of service at discharge was inequitable; his misconduct was mitigated by PTSD symptoms and subsequent diagnosis.

Propriety - In accordance with paragraph 6210.6 of the Marine Corp Separation and Retirement Manual ( MARCORSEPMAN ) , service members may be separated based on the commission of a serious military or civilian offense when the Commanding Officer believes the specific circumstances of the offense warrant separation and the offense would warrant a punitive discharge if adjudicated at trial by court - martial for the same or closely related offense. Furthermore, administrative separation for the commission of a serious military o r civilian offense does not require adjudication; however, the offense must be substantiated by a preponderance of evidence. The charges in which the Applicant w as found guilty of violating (Article s 92 and 111) warrant ed punitive discharge and possible confinement for up to two years, if adjudged at trial

by special or general court - martial. As each of the charges to which the A pplicant was found guilty of violating did warrant a punitive discharge and possible confinement in excess of 6 months, the requirements necessary to establish the criteria for a “Serious Offense” were met. The Applicant was notified of his administrative rights regarding separation , was notified that the least favorable characterization of service being recommended was Under Other Than Honorable Conditions, and he made his election of rights as previously stated. The Separation Authority approved the recommendation for separation , having determined that the evidence of record supported the basis for discharge and that the characterization of service, as recommended, was warranted. The Applicant received an Under Other Than Honorable Conditions characterization of his service at discharge and was further advised that he was not recommended for re-enlistment. Based on a review of the evidence and circumstances unique to this case, the NDRB determined that the Applicant’s misconduct properly satisfied the requirements established for separation based on the commission of a serious offense as the basis for discharge. As such, the NDRB determined there was no impropriety because of an error of fact, law, procedure, or discretion with the discharge. Relief based on propriety is denied.

Equity - The NDRB reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis. If such a review reveals an impropriety or inequity, relief is in order. Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval S ervice. The NDRB completed a thorough review of the Applicant’s discharge process and determined his discharge met the pertinent standard of propriety. However, after a careful review of the Applicant’s combat deployment history and in-service mental health issues and diagnoses of PTSD, coupled with the extensive and heavy post - deployment alcohol use , the NDRB determined the Applicant’s PTSD symptoms were mitigating and contributory factors in his misconduct. Based on the Applicant ’ s documentation, his official service and medical records, coupled with the facts and circumstances unique to this case, the NDRB determined partial relief was warranted. By unanimous vote, the NDRB agreed that the narrative reason for separation was proper as issued; however, the characterization of service at discharge was inequitable. As such, the Board determined an upgrade to General (Under Honorable Conditions) was warranted. Full relief to Honorable was not granted due to the repetitive, serious nature of the misconduct.

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 determined that Therefore, the awarded characterization of service shall however, 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, Reenlistment/RE-code , 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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USMC | DRB | 2010_Marine | MD1001405

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