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USMC | DRB | 2010_Marine | MD1001649
Original file (MD1001649.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20100622
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)       20040415 - 20040926     Active:  

Period of Service Under Review:
 Date of Current Enlistment: 20040927     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20090207      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 12 D a y ( s )
Education Level:        AFQT: 39
MOS: 0311
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness Reports:

Awards and Decorations ( per DD 214):      Rifle MM

Periods of UA / CONF :

NJP:

- 20050214:      Article (Unauthorized absence, 0530 20050131 - 1350 20050205, 5 days)
         Awarded: Suspended:

- 20050303 :      Article (Unauthorized absence, 20050220 - 20050301, 10 days)
         Awarded: Suspended:

SCM:

- 20050427 :      Article (Unauthorized absence, 20050310 - 20050405, 27 days)
         Sentence:

SPCM:    CC:

Retention Warning Counseling:

- 20050303 :      For viol ation of Art icle 86 , absent without leave. Specifically, you failed to be at your appointed place of duty from 1800 on 20050220 and did remain absent until 1940 on 20050301.

- 20050214:      For violation of Article 86 (Unauthorized Absence from 31 Jan 05 to 5 Feb 05).
- 200509303:     For lack of accountability in ensuring that your Ordnance Custody Receipt Card (NAVMC 10520) was secured and accounted for. On 20050924 you reported to your chain of command that you lost/misplaced your NAVMC 10520 card.

Administrative Corrections to the Applicant’s DD 214

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

          Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, should read: “ RIFLE SHARPSHOOTER BADGE, MARINE CORPS GOOD CONDUCT MEDAL, COMBACT ACTION RIBBON, NATIONAL DEFENSE SERVICE MEDAL, GLOBAL WAR ON TERRORISM SERVICE MEDAL, IRAQ CAMPAIGN MEDAL , SEA SERVICE DEPLOYMENT RIBBON (2), NAVY UNIT COMMENDATION (2) , MERITORIOUS MAST ”
          “ 2004 09 27 ”
          “ UNDER OTHER THAN HONORABLE CONDITIONS ”
          “ (5) 20050131 - 20050204, (9) 20050220 - 20050228,
         (27) 20050310 - 20050405 ”
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 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 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.       Applicant w ants his discharge upgraded so he can receive v eterans medical benefits.
 2 .       Applicant indicates he completed his contract, during which he received a Good Conduct Medal , as well as served two combat tours in Iraq and received a C ombat A ction R ibbon.
 3 .       Applicant asserts he requested to go to an inpatient rehabilitation program after failing outpatient treatment but was denied. He further contends he was discharged without receiving proper help for his drug and alcohol addictions .
4.       The Applicant provided documentation indicating he was diagnosed with Post - Traumatic Stress Disorder ( PTSD ) shortly after his discharge from the Marine Corps , suggesting that his condition mitigates his misconduct.

Decision

 Date: 20 1 1 1116            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 g overnment al a ffairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Board complete d a thorough review of the circumstances that led to the Applicant’s 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 warning s and two non-judicial punishments for violations of the Uniform Code of Military Justice (UCMJ): Article 86 ( Absence without leave, 2 specifications ) . It also included one summary court- martial for violation of the UCMJ: Article 86 ( Absence without leave , 1 specification). Documentation found in the Applicant’s service record indicates disciplinary action was pending for additional violations of the UCMJ: Article 112a (Wrongfully used controlled substances: Specification 1 - methamphetamine on or about 20080918 and Specification 2 - cocaine and methamphetamine on or about 20081008). Rather than face trial by court-martial, o n 25 November 2008, the Applicant submitted a request for separation in lieu of trial by court-martial. In the request for discharge, he noted that his counsel had fully explained the elements of the offense s for which he was charged and that he was guilty of the offense s . He certified a complete understanding of the negative consequences of his actions and that characterization of service would be Under Other Than Honorable Conditions. Based on the offense s committed by the Applicant, his command administratively processed him for separation.
: (Non - decisional) The Applicant wants his discharge upgraded so he can receive v eterans medical benefits. The U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the Naval Discharge Review Board. There is no requirement, or law, that grants re-characterization solely on the issue of obtaining v eterans benefits , and this issue does not serve to provide a foundation upon which the Board can grant relief. The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing a former service member’s eligibility to receive VA medical benefits. Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.

: (Decisional) ( ) . Applicant indicates he completed his contract, during which he received a Good Conduct Medal as well as served two combat tours in Iraq and received a C ombat A ction R ibbon. Despite a service member’s prior record of service, to include service in combat, certain serious offenses warrant separation from the Marine Corps to maintain proper order and discipline. Violation of Article 112a of the UCMJ is such an offense. Wrongful use of a controlled substance can result in an unfavorable characterization of service, or at a maximum, a punitive discharge, and possible confinement if adjudicated and awarded as part of a sentence by a special or general court-martial. The Applicant

violated Article 112a. However, r ather than face trial by court-martial, t he Applicant submitted a request for separation in lieu of trial by court-martial. His command approved his request , choosing not to pursue a punitive discharge but opting instead for the more lenient administrative discharge. The NDRB found the characterization of the Applicant ’ s discharge was equitable and consistent with the characterization of discharge given others in similar circumstances. Relief denied.

: (Decisional) ( ) . The Applicant asserts he requested to go to an inpatient rehabilitation program after failing outpatient treatment but was denied. He further contends he was discharged without receiving proper help for his drug and alcohol addictions. 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 claim. The Board found no evidence in the Applicant’s service and medical record s indicating he requested to go to inpatient rehabilitation treatment or that his request was denied. The Board also found no evidence that the treatment the Applicant did receive was not proper. Documentation found in the Applicant’s service record confirmed that he was afforded the opportunity to attend an intensive addictions rehabilitation program at Tripler Army Medical Center on 17 November 2008, which was while he was on legal hold. According to the Applicant, he failed to complete the program. The Board concluded that the Applicant’s failure to complete the rehabilitation program is not an indication that he did not receive proper care. His statement alone does not overcome the government’s presumption of regularity in this case. Therefore, the Board concluded the Applicant’s discharge was proper . Relief denied.

Issue 4: (Decisional) ( ) . T he Applicant provided documentation indic ating he was diagnosed with PTSD shortly after his discharge from the Marine Corps , suggesting that his condition mitigates his misconduct. 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. However, the Board generally does not consider the circumstances surrounding the Applicant’s stated condition, the implied incorrect diagnosis o r non-diagnosis, nor the medical treatment given to the Applicant to be of sufficient nature to exculpate the Applicant’s misconduct. Documentation found in the Applicant’s medical record indicat es he was diagnosed with Adjustment Disorder prior to his deployment to Iraq. The Board also found documentation in his service record indicat ing he had three documented occasions of misconduct prior to his deployment to Iraq. Considering his pre-deployment medical diagnosis and misconduct, the Board determined that the Applicant had a prope nsity for misconduct before combat - related PTSD became a factor. Therefore, the NDRB concluded that the Applicant’s diagnosis with PTSD did not mitigate his misconduct. 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 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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