Upgrade.Vet

USMC | DRB | 2010_Marine | MD1002165

Original file (MD1002165.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20100831

Characterization of Service Received:

Narrative Reason for Discharge:

Authority for Discharge: MARCORSEPMAN

Applicant’s Request:      Characterization change to:
         Narrative Reason change to: CONVENIENCE OF THE GOVERNMENT

Summary of Service
Prior Service:
Inactive:         USMCR (DEP)       20010626 - 20020616     Active:          20020617 - 20051117

Period of Service Under Review:
Date of Current Enlistment: 20051118     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20090515      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 28 D a y ( s )
Education Level:        AFQT: 62
MOS: 0311
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      , , ( WITH 4 STARS) , (3) , , , , , (2) , CoC (2) , LoA

Periods of UA :

NJP:
- 20080917 :       Article 120 (Indecent exposure, 2 specifications )
         Awarded : Susp ended:

SCM:
- 20070209 :       Art icle (Disobey a lawful order or regulation)
         Sentence : (20070209-20070305, 25 days)

SPCM:             CC:

Retention Warning Counseling : in current enlistment and 3 others from previous enlistment period , which carry forward per MARCORSEPMAN (paragraph 1004.4(a)(1)) .
- 20060716 :       For your overall lack of leadership and failure to deal with your junior Marines on a professional level. Your Marines look at you as a friend rather than a leader. As a Corporal of Marines you need to set the example for your Marines to emulate. You are deficient in running day-to-day combat operations, and as such , you are relieved of your duties as third squad leader.

- 20070129 :       For your overall lack of enthusiasm, initiative, and poor leadership qualities. On 20070126 you failed a scheduled inspection for the following discrepancies: Improper shave, improperly fitted uniform , and hair not within regulations. This has been just one example of your numerous faults in your leadership abilities. You consistently have failed to take positive, corrective action on shortcomings and deficiencies despite being given every opportunity. As a Corporal of Marines , it is your responsibility to set the example for others to emulate, over the past 6 months you have exerted very little positive leadership or influence over your subordinate Marines. You have been informally counseled on numerous occasions by your Platoon Sergeant and Company First Sergeant, yet have failed to display any improvement whatsoever .

- 20081007 :       For being held accountable at a base level nonjudicial punishment on 20080903 for Article 120, in that PFC did at or near 621 Montara Road, Barstow, CA, from on or about 20071215 to 20080611, intentionally expose, in an indecent matter, his genitalia while in a public place, to wit: Wal-Mart.

Administrative Corrections to the Applicant’s DD 214

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

         “ CONTINUOUS HONORABLE ACTIVE SERVICE FROM 020617 UNTIL 051117 ”
         “ 02 06 17 ”
         “ 03 05 28 ”
         Block 12d, Total Prior Active Service, should read: “ 03 05 01 ”
         Block 12e, Total Prior Inactive Service, should read: “ 0 0 11 21 ”
“ MISCONDUCT ”

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. 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

Decisional issues : The Applicant contends that his discharge as issue d was improper and inequitable for the following reasons: (1) the administrative discharge process was preemptive, prejudicial, and incorrect; (2) Pa g e 11 counseling entries from his previous enlistment period were used during his administrative discharge board; (3) the Command was preemptive and did not accord the A pplicant a rehabilitative period after his NJP; (4) the Applicant’s Post - Traumatic Stress Disorder (PTSD) was not considered as mitigation to his actions or for matters of retention; and (5) an infantryman was not assigned as a member of the administrative discharge board to be able to better relate to the A pplicant’s issues and the effects of his combat service.

Decision

Date: 20 1 1 0908 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 10, Section 1553 (d) (1), the NDRB 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 achi eve 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 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 five decisional issue s 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 active duty military service at age 18 on a four-year contract with a guarantee of Infantry training. He entered the service with out waiver to enlistment conditions or standards and successfully completed that enlistment period honorably ; he was re - enlisted immediately for a second period of enlistment obligation on 18 November 2005 . The Applicant’s record of military service documents that he is a combat veteran , deploying three times with an Infantry Battalion to conduct combat operations in the Al-Anbar province of Iraq in support of Operation IRAQI FREEDOM from Feb 2003 to Oct 2003 (OIF 1), Aug 2004 to Mar 2005 (OIF II), and Feb 2006 to Sep 2006 (OIF 05-07) . The Applicant’s record of service documents three retention-counseling warnings in his previous enlistment and three retention-counseling warnings in his current enlistment. Moreover, his record of service during his current enlistment includes a nonjudicial punishment and a Summary Court - Martial for violations o f the Uniform Code of Military Justice (UCMJ). Specifically, the Applicant violat ed Article 92 (Failure to obey order or regulation) and Article 1 20 ( Indecent exposure - two separate specifications).

Based on the established pattern of misconduct and the individual offenses committed by the Applicant, his command recommended that he be administratively processed for separation. When notified of administrative separation processing using the administrative board notification procedure, the Applicant elected to consult with a qualified legal counsel and exercised his right to request a hearing before an administrative discharge board. The Applicant was advised in writing that the least favorable characterization of service he could receive was Under Other Than Honorable Conditions and that characterization was what the Commander was recommending. In accordance with the Applicant’s election of rights, a duly constituted administrative discharge board heard the Applicant’s case regarding his administrative separation: by a vote of 3-0, the board found a preponderance of the evidence supported the finding that misconduct had occurred as alleged in the notification ; by a vote of 3-0, the board recommended separation without suspension; and by a vote of 3-0, the board recommended the Applicant’s characterization of service at discharge be General (Under Honorable Conditions). The Separation A uthority reviewed the f indings and concurred with the b oard ’s recommendations; on 15 May 2009, the Applicant was discharged with a re-entry code of RE-4 (not recommended for reenlistment).

NDRB Board Issue - T he Applicant should be aware that the VA has announced special VA enrollment access for PTSD and mental health treatment to combat veterans discharged under other than dishonorable conditions (i.e. all discharges other than Bad Conduct and Dishonorable D ischarges as issued by a Special or General Court - Martial) . Effective Jan. 28, 2008, combat veterans discharged from active duty on or after Jan. 28, 2003 are eligible for combat veteran enhanced eligibility and enrollment placement into Priority Group 6 (unless eligible for higher enrollment Priority Group placement) for 5 years post discharge. Additionally, the VA determines the eligibility for enrollment in its programs independent of the Applicant’s characterization of service as determined by the Marine Corps. The Applicant, as a combat veteran, is encouraged to contact his local VA affairs representative for more information and may request a compensation and pension (C&P) exam be conducted to establish his service - connected eligibility for PTSD treatment . Alternately, he may call 1-877-222-8387 or visit the following website for more information: http://www4.va.gov/healtheligibility/Library/pubs/CombatVet/CombatVet.pdf .

(Decisional Issue s ) (Propriety/ ) . 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 paragraph 6210.3 of the Marine Corps Separation and Retirement Manual (MARCORSEPMAN) - Misconduct (Pattern of Misconduct). The Applicant’s record reflected misconduct (Summary Court - Mart i al dated 20070209 and NJP dated 20080917 ) , which violated five previous retention-counseling warnings . These actions established a pattern of misconduct that warranted consideration for administrative separation. The Applicant’s service record reflects that he was advised properly on the separation recommendation by his chain of command , and he was afforded the opportunity to exercise his rights and acknowledged all such in writing. The Separation Authority reviewed the evidence of record and the administrative discharge board findings and concurred with the determin ation that a preponderance of the evidence satisfied the requirements as outlined in the applicable regulation (paragraph 6210.3 of the MARCORSEPMAN) ; accordingly, he directed the Applicant be discharged. The NDRB determined that the evidence of record did establish the basis for discharge and that the actions were proper. Accordingly, relief based on propriety is not warranted.

Issue 1 - The Applicant contends that the administrative discharge process was preemptive, prejudicial, and incorrect. Whenever a Marine is involved in misconduct, as described in paragraphs 6210 of the MARCORSEPMAN , commanders shall process the Marine for separation unless rehabilitation and retention are warranted under the guidelines in paragraph
6105 of the reference . Characterization of service normally shall be U nder O ther T han H onorable C onditions, but characterization as G eneral ( U nder H onorable C onditions) may be warranted in some circumstances. The Applicant’s current period of enlistment included a S ummary C ourt -M artial followed by a non-judicial punishment for sexual misconduct (i ndecent e xposure). These two violations of the UCMJ, coupled with his violation of the five retention-counseling warnings he had previously received, warranted the Commander ’ s decision to seek discharge. Additionally, in accordance with paragraph 6210.4, t he violation of Article 120 is a violation that requires mandatory processing for separation and should be processed in accordance with paragraph 6210.6 of the MARCORSEPMAN - Misconduct ( Commission of a Serious Offense ) . The NDRB determined that the C ommand improperly separate d the applicant; in accordance with paragraph 6210 of the MARCORSEPMAN, the Applicant should have been processed for separation pursuant to both Misconduct ( Commission of a Serious Offense ) and Misconduct ( Pattern of Misconduct ) . The Applicant was processed only for the lesser reason of Misconduct ( Patten of Misconduct ) ; the NDRB determined that the administrative error was an error in the Applicant’s favor . As such, no relief is warranted.

Issue 2 - The Applicant contends that P age 11 counseling entries from his previous enlistment period were used during his administrative discharge board , which inequitably influence d the board’s outcome. In accordance with paragraph 1004.4(a) (1) of the MARCORSEPMAN, “ Characterization of the current enlistment or period of service is determined by conduct, actions, or performance during that enlistment or service plus any extensions prescribed by law or regulations or effected with the consent of the member. Thus, positive or negative conduct, acts, or performance during a period of prior military service--including court-martial, nonjudicial punishment, absence without leave, misconduct for which a reenlistment waiver was granted, or commission of other offenses for which punishment was not imposed or adjudged--cannot be considered in determining the characterization to be recommended for the current enlistment. ” However, the paragraph also notes that paragraph 6105 retention- counseling entries from previous enlistments d o carry over and d o remain valid in current enlistment s . Once a member is counseled regarding misconduct and advised – in writing – that any further misconduct may warrant further judicial action or administrative separation processing , that retention- counseling warning does remain in effect and is binding throughout future service . The NDRB determined the P age 11 counseling entries, as specified by the Applicant, were valid paragraph 6105 retention-counseling warnings, and, as such, did warrant consideration by the administrative discharge board in determining matters of retention and of characterization of service. Accordingly, n o relief is warranted.

Issue 3 - The Applicant contends that the Command was preemptive and did not accord the A pplicant a rehabilitative period after his NJP. As stated in the preceding paragraph, retention warnings carry forward through enlistments. The Applicant was advised - in writing - on four prior occasions that any further misconduct or failure s in the performance of his duties may r esult in further judicial procedures or administrative separation from the service. T he Applicant’s violation of those warnings, as documented by his Summary Court - Martial (20070209) and NJP (20080917) , did provide ample opportunities to take corrective actions before the Command determined that he no longer had any potential and recommended his administrative separation. Based on a detailed review of the Applicant ’ s service record, the NDRB determined no impropriety or inequity in the discharge. The Applicant was afforded ample opportunities to take corrective actions and failed to do so. Relief denied.

Issue 4 - T he Applicant contends that his PTSD was not considered as mitigation to his actions or for matters of retention . Certain serious offenses warrant separation from the service to maintain the good order and discipline of the service . Violation of Article 1 20 is one such offense , requiring mandatory processing for administrative separation regardless of grade or time in service. This usually results in an unfavorable characterization of discharge or, at a maximum, a punitive discharge and possible confinement if adjudicated and awarded as part of a sentence by a S pecial or G eneral C ourt- M artial. The Applicant was diagnosed, in service, as suffering from PTSD and was receiving treatment for his condition. However, the NDRB does not consider PTSD as absolving a Marine completely of his conduct and his performance of duties . The Applicant may have a combat injury, but he is responsible for his actions . In the Applicant’s specific case, t he command did not pursue a punitive discharge for the Applicant’s willful and discrediting misconduct, but opted instead for the more lenient administrative discharge. Additionally, the administrative hearing board recommended discharge with a characterization of service of General (Under Honorable Conditions). Misconduct of this nature usually warrants punitive punishment by a Special or General Court - Martial and an ensuing Bad Conduct or Dishonorable D ischarge. The NDRB determined that the Applicant’s PTSD was considered by the command and did mitigate the outcome, the findings of the administrative board, and the Separation Authorit y ’ s final action. Having reviewed the me dical diagnosis of PTSD and the actions take n by the Command, the NDRB determined that the Applicant’s contention was without merit . Relief denied.

Issue 5 - The Applicant contends that since an infantryman was not assigned as a member of the administrative discharge board , the board was not able to properly relate to the A pplicant’s issues and the effects of his combat service . In accordance with the MARCORSEPMAN, Chapter 6 - Enlisted Administrative Separations , Section 3 - Administrative Procedures , Part C - Administrative Separation Board , there is no requirement to establish members of an administrative discharge board by their Military Occupational Specialty (MOS) or the MOS of the Marine pending separation. As requested by the Applicant, the Commander convened a properly constituted administrative discharge hearing board. In contrast to the Commander’s proposed recommendation, the administrative hearing board recommended a less harsh characterization of service. The Commander did not rebut the lesser determination and forwarded the results to the Separation Authority who also chose not to challenge the board’s findings and approved the separation with a General (Under Honorable Conditions) characterization of service. Having reviewed the discharge process and the proceedings of the administrative hearing board, the NDRB determined that the Applicant was not harmed by the discharge board composition; in fact, the Applicant did benefit from the board who determined that the Applicant’s overall service warranted a higher characterization of service than that which the C ommand had proposed. As such, the NDRB determined that no relief was warranted.

The NDRB conducted a thorough review of the Applicant’s combat deployment history and the timing and the circumstances involved in the Applicant’s incidents of misconduct, coupled with the Applicant’s in-service mental health evaluations by appropriately credentialed mental health care providers who diagnosed PTSD. The NDRB reviewed t h is medical issue in light of the Applicant’s misconduct for possible mitigation. The NDRB determined that the Applicant’s diagnosed PTSD was a mitigating factor associated with his in-service misconduct. However, the NDRB does not consider PTSD as a reason to completely absolve the Applicant of his misconduct. The NDRB determined that mitigation was considered in the final discharge determination and that a further upgrade to Honorable would not be appropriate. In accordance with the MARCORSEPMAN, an Honorable characterization of service is warranted when the quality of a member’s service generally meets the standards of acceptable conduct and performance for N aval 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 no impropriety in the discharge action that would warrant a change nor did it determine any inequity in the characterization of the Applicant’s service at discharge . A s such, the NDRB determined that an upgrade in the Applicant’s characterization of service at discharge was not appropriate and is not warranted. Furthermore, the NDRB determined that the narrative reason for separation was proper as issued and accurately reflected the Applicant’s reason for separation .

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, medical and service record entries, police reports, and the discharge process, the NDRB 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 his 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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USMC | DRB | 2010_Marine | MD1002165

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