Upgrade.Vet

USMC | DRB | 2010_Marine | MD1002241

Original file (MD1002241.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20100915

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)       19960216 - 1996101 4     Active: 1996101 5 - 20020318 HON
                                    USMC 20020319 - 200 5 1213 HON

Period of Service Under Review:
Date of Current Enlistment: 200 5 1214     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20081202      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 18 D a y ( s )
Education Level:        AFQT: 55
MOS: 5541
Fitness R eports:

Awards and Decorations ( per DD 214):      (w/3 stars) , (w/1 star) , (w/1 star) , , , NUC ( 4 ) , (2) , LoA (13) , CoC (2)

Periods of CONF :

NJP:
- 20081117 :       Article ( Absent without leave , 3 specifications )
         Specification 1: On or about 2008092 4 , failed to go at time prescribed to appointed place of duty, the Band Hall
         Specification 2: absented himself from his unit, without authority - 20081021-20081021 ( 1 day )
         Specification 3: absented himself from his unit, without authority - 20081028-20081029 (2 days)
         Awarded : Susp ended:

SCM:     SPCM:    CC:

Retention Warning Counseling :
- 20081022 :       For failing alcohol rehabilitation treatment. You attended in-patient treatment in October 2007. In September 2008 you were UA from your appointed place of duty due to being intoxicated. You attended further in-patient treatment in September 2008. On 21 October 2008 you were UA from your appointed place of duty and intoxicated.

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 96101 5 UNTIL 051213 ”
         “ 081021 (1) , 081028-081029 (2) ”

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 . The Marine Corps Separation and Retirement Manual, (MCO P1600.19F), effective 1 September 2001 until Present, Paragraph 6209, ALCOHOL REHABILITATION FAILURE.

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 : The Applicant seeks an upgrade in the characterization of his service at discharge to Honorable in order to qualify for Department of Veterans Affairs (VA) educational benefits ( P ost 9/11 GI Bill).

2.       Decisional issues : The Applicant contends that his characterization of service at discharge was inequitable as his misconduct is mitigated by Post - Traumatic Stress Disorder (PTSD) symptoms .

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 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 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 1 8 on a four-year contract with a guarantee of training as a Musician . He entered the service with out any waiver to enlistment conditions or standards. The Applicant completed two Honorable enlistment periods successfully and immediately re-enlisted on 14 December 2005 with a new, four-year contract; the current period of service under review for which he received a General (Under Honorable Conditions) discharge for Alcohol Rehabilitation Failure. The Applicant’s record of military service further documents that he is a combat veteran, deploying with a Marine Air Wing Headquarters to conduct combat support operations in the Al-Anbar Province, Iraq in support of Operation IRAQI FREEDOM (OIF) from August 200 4 to March 2005 . The Applicant’s record of service during his current enlistment documents one paragraph 6105 retention-counseling warning. Furthermore , the record also document s one non-judicial punishment (NJP) for violations of the Uniform Code of Military Justice (UCMJ): Article 86 ( Absent without leave , 3 specifications). Moreover, during this enlistment period, the Applicant was assigned to Alcohol Rehabilitation Care on three occasions: Early Intervention Course on 26 April 2007 (result of alcohol - related incident on 24 October 2006) , Residential Inpatient Treatment program from 19 October to 09 November 2007 , and Residential Inpatient Treatment program from 22 September to 10 October 2008. Each of the Applicant’s assignments to alcohol rehabilitation treatment w as the result of medical evaluations and appropriately credentialed substance abuse counselor recommendations for treatment.

Based on the Applicant’s diagnosis of treatment failure by the Substance Abuse Counseling Center Counselor and Medical Officer, the command administratively processed for separation. When notified of administrative separation processing using the notification procedure, the Applicant exercised his right to consult with a qualified legal counsel, but waived his rights to submit a written statement for consideration by the separating authority or to request an administrative discharge hearing board be held in order to present his case for retention and characterization.

Nondecisional I ssue : The Applicant seeks an upgrade in the characterization of his service at discharge from General (Under Honorable Conditions) to Honorable in order to facilitate access to VA educational b enefits. There is no requirement, or law, that grants re-characterization solely on the issue of obtaining veterans health and educational benefits. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities.

Decisional Issue : (Propriety/ ) . The Applicant contends that his characterization of service at discharge was inequitable as his misconduct is mitigated by PTSD symptoms . A s such, the Applicant seeks an upgrade to Honorable service.

Propriety - In accordance with paragraph 6209 of the Marine Corp Separation and Retirement Manual (MARCORSEPMAN), service members who have been referred to a program of rehabilitation for personal alcohol abuse and/or dependency may be separated for failure through inability or refusal to participate in, cooperate in, or successfully complete such a program and there is a lack of potential for continued N aval S ervice . The Applicant self - referred for alcohol abuse treatment; he was diagnosed as Alcohol Depend e nt and was assigned to Residential Inpatient treatment (Oct/Nov 2007). He successfully completed this treatment program and was returned to his command with an aftercare plan (signed by the Applicant), which outlined in detail, his continuing care and aftercare requirements to includ e abstaining from alcohol. The service record documents treatment failure due to relapse in alcohol use/abuse as documented by the resulting alcohol - related incidents that were the basis for the nonjudicial punishment (UA and driving under the influence of alcohol/absent from medical evaluation appointment due to being intoxicated). T he Applicant was notified of his administrative rights regarding separation , was notified that the least favorable characterization of service being recommended was General (Under Honorable Conditions ) , and he made his election of rights as previously stated. The Separation Authority approved the recommendation for separation - Alcohol Rehabilitation Failure - having determined that the evidence of record supported the basis for discharge and that the characterization of service, as recommended, was warranted. Based on a review of the evidence and circumstances unique to this case, the NDRB determined that the Applicant’s diagnosis, treatment, and relapse of alcohol abuse properly satisfied the requirements established for separation based on Alcohol Rehabilitation Failure 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 Service. The NDRB conducted a thorough review of the Appli cant’s combat deployment history and service and medical records. Based on t he misconduct of record, the Applicant ’ s length of service , rank, and command documentation, the NDRB determined the Applicant’s PTSD symptoms were possibly mitigating and contributory factors to his alcohol problems but that his alcohol abuse was not a rationale or an acceptable excuse for inappropriate conduct or misconduct . An Honorable characterization of service is warranted when the quality of a member’s service generally meets the standard of acceptable conduct and performance for N aval personnel, or is otherwise so meritorious that any other characterization of service would be clearly inappropriate. However, a General (Under Honorable Conditions) discharge is warranted and appropriate 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. 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 that the Applicant’s service was honest and faithful but that significant negative aspects of his conduct or performance of duty did outweigh the positive aspects of his service . By unanimous vote, the NDRB agreed that the narrative reason for separation was proper as issued and that the characterization of service at discharge was equitable. As such, the Board determined an upgrade was not warranted . Relief denied .

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 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, 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 | MD1002241

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