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USMC | DRB | 2010_Marine | MD1001825
Original file (MD1001825.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20100709
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)       20061117 - 20061127     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20061128     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20091020      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 23 D a y ( s )
Education Level:        AFQT: 61
MOS: 3531
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle WITH 1 CAMPAIGN STAR (2) CoC

Periods of UA / CONF : UNABLE TO DETERMINE
 Period of Time Lost (per DD 214): 20081206 – 20081221 ( 16 days )

NJP:

- 20070910 :       Article (Wrongfully and willfully impersonate a noncommissioned officer)
         Awarded: Suspended:

- 20071209 :      Article (Disobeying a lawful order – using an unauthorized electronic device while on post)
         Awarded: Suspended:

- 20081009 :      Article (Insubordinate conduct toward SSgt)
         Article (Assault)
         Awarded: 60 days credit for time served i n pretrial confinement and pretrial restriction . Suspended:

- 20090220 :      Article (Assault), 2 specifications
         Specification 1: Unlawfully strike Cpl with his foot
         Specification 2: Lunging at a LCpl in an aggressive manor
         Article 134 (General order), 2 specifications
         Specification 1: Wrongfully communicated a threat
         Specification 2: Drunk and disorder ly conduct
         Awarded: Suspended:

SCM:     SPCM:    CC:




Retention Warning Counseling :

- 20070910 :       For my demonstrated shortfalls in the military attributes of leadership, judgment, reliability, obedience and self-discipline as evidenced by my being found guilty at NJP for violating Article 134: Impersonating a noncommissioned officer).

- 20081118 :       For your pattern of misconduct. Specifically, in that you have violated Article 134 : disorderly conduct and drunkenness. While out for the evening, you were found passed-out at the lobby of the hotel you were staying. The hotel staff called an ambulance and transported you to the NMCSD. There, you continued to act disorderly towards the hospital staff finally, you were released and brought back to the Battalion Officer of the Day.

- 20081126 :       For your pattern of misconduct. Specifically, in that you violated Article 134: disorderly conduct and drunkenness. While out for the evening, you were found passed-out in the streets of Oceanside and picked up by Oceanside Police and bought back to the Battalion Officer of the Day.

- 20090220 :       For violations of Articles 128, 2 specifications, 134, 2 specifications.

- 20090302 :       For misconduct, specifically, violation of Articles 91: Insubordinate conduct. In that on 20090212 was disrespectful in his speech and behavior towards Master Sergeant.

- 20090624 :       For your ongoing pattern of misconduct, evidenced by your recent DUI on 0090501. Based on that, you are hereby informed that the Commanding Officer is recommending your immediate separation and discharge from the USMC.

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. Paragraph 6210, MISCONDUCT , 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.       Nondecisional issues: Applicant seeks an upgrade in the characterization of his service at discharge in order to better facilitate employment opportunities.

2.       Decisional issues : Applicant contends that his discharge characterization of service was inequitable in that it did not consider the effects of Post - Traumatic Stress Disorder as it relates to extenuating and mitigating circumstances in regards to his misconduct.

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 re ason for discharge, if such change is warranted. In reviewing discharges, the NDRB 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. 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 military service with a waiver for pre-service drug use (marijuana) and a waiver for a felony arrest driving conviction (brandishing a firearm on a state road). The Applicant acknowledged his complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs – in writing – prior to his enlistment. The Applicant’s official service record documents six written paragraph 6105 retention-counseling warnings and four nonjudicial punishments for violations of the Uniform Code of Military Justice (UCMJ) as follow:

•         Article 91 – Insubordinate conduct toward a staff noncommissioned officer (specifically – disrespectful comportment)
•         Article 92 – D isobedience of a lawful order or regulation (specifically – unauthorized electronic device while on post in Iraq)
•         Article 128 – Assault (specifically – unlawful striking and/or lunging in an aggressive manor)
•         Article 134 – Wrongfully and willingly impersonating a noncommissioned officer
•         Article 134 – General Article (specifically – wrongfully communicating a threat and drunk and disorderly conduct) .

The Applicant’s service record reflects extensive alcohol - related incidents and counseling for those issues. The Applicant was afforded training and counseling regarding a lcohol use and abuse via Alcohol Impact Training classes, Intensive Outpatient Alcohol Treatment, and attendance at a L evel III Inpatient Treatment Program at Point Loma, California. Additionally, the Applicant self-referred himself for mental health treatment; initially diagnosed with an Adjustment Disorder with Depressed Mood and then diagnosed with Post - Traumatic Stress Disorder , Alcoholism, Anxiety, and an A djustment D isorder with D epressed M ood. Since his separation from the Marine Corps, the Applicant continues to be treated by the Department of Veterans Affairs for his in-service diagnosis of PTSD and his chronic alcoholism. The Applicant’s record of military service documents that he is a combat veteran, deploying to a designated combat zone , and conducting combat operations in the Al-Anbar province of Iraq in support of Operation IRAQI FREEDOM from September 2007 to April 2008 .

: (Nondecisional) . The Applicant seeks an upgrade in the characterization of his service at discharge in order to better facilitate employment opportunities . The NDRB has no authority to change the characterization of service at discharge or the narrative reason for separation in order to improve an Applicant’s employability ; regulations limit the NDRB’s authority to a review based solely on a determination of the propriety and the equity of a d ischarge. As such, th e Applicant’s specific issue does not serve to provide a foundation upon which the NDRB can grant relief .

: (Decisional) ( ) . The Applicant contends that his discharge characterization of service was inequitable in that it did not consider the effects of undiagnosed PTSD as it relates to his service and misconduct as an extenuating and mitigating circumstance. The Applicant requests that the NDRB consider : his service to his nation in combat ; his awards and decorations for that service ; the circumstances related to the death of his brother (w ho enlisted on the buddy program with him and was stationed in the same unit together ); coupled with his in-service medical diagnosis of severe PTSD and how these conditions have affected his behavior since return from Iraq. The Applicant is seeking an upgrade in his characterization of service at discharge to General (Under Honorable conditions).

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 the standards of discipline of the Naval service. The NDRB completed a thorough review of the Applicant’s issues and the discharge process and determined that the discharge met the pertinent standard of propriety in accordance with the Marine Corps Separation and Retirement Manual (MARCORSEPMAN) . The NDRB conducted a thorough review of the Applicant’s combat deployment history, the timing and circumstances involved in the death of his brother, the Applicant ’ s in-service mental health diagnoses of PTSD and alcoholism by the Naval Medical Center, Camp Pendleton , and the out-patient and in-patient alcohol treatment program attendance s. Th e NDRB determined that the discharge, as awarded, was inequitable.

An Honorable characterization of service is warranted when the quality of a member’s service generally meets the standard s of acceptable conduct and performance for naval personnel, or is otherwise so meritorious that any other characterization of service would be clearly inappropriate. 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. After a thorough review of the facts and circumstances unique to this case, the NDRB discerned an inequity in the discharge characterization of the Applicant’s service. Based on the Applicant's documentation and his official service and medical records, coupled with the facts and circumstances unique to this case, the NDRB determined that relief was proper and warranted. The NDRB voted unanimously that an upgrade in the Applicant’s characterization of service at discharge to General (Under H onorable Conditions) was appropriate and warranted . However, the NDRB determined that the narrative reason for separation was proper and accurately reflected the Applicant’s reason for separation; therefore, it shall remain Misconduct (Pattern of Misconduct).

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 , 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 his discharge. The Applicant is directed to the Addendum, specifically the paragraphs titled Additio nal 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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