Upgrade.Vet

USMC | DRB | 2011_Marine | MD1100022

Original file (MD1100022.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20101005

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)       20050118 - 2005 0821     Active:

Period of Service Under Review:
Date of Current Enlistment: 200 50822     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20080624      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 10 D a y ( s )
Education Level:        AFQT: 61
MOS: 0311
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214): , (w/1 star) , , ,

Periods of UA: 20071031 – 200 80123 (84 days)

Periods of Confinement: 20081212 - 20080121 (40 days, Confined: I n H ands of C ivil A uthority (IHCA) )
200801 22 - 2008042 3 ( 92 days, Pre-trial confinement)

NJP:

- 20070608 :       Article (Drunken or reckless operation of a vehicle, aircraft or vessel)
         Article 92 (Disobey a lawful order, consume alcohol underage)
         Awarded : Susp ended:

- 20070719 :       Article (Violation or failure to obey lawful order or regulation , violated restriction )
         Awarded : Susp ended:

SCM:

SPCM:

- 20080424 :       Art icle (Unauthorized absence 20071031-200 80123 , 84 days )
         Article 87 (Missing movement on 20071031)
         Article 92 (Violate a lawful order), 2 specifications
         Specification 1: Underage drinking on 20071006
         Specification 2: Underage drinking on 20071021
         Article 112a (Wrongful use of a controlled substance), 2 specification s
         Specification 1: Cocaine on 20071010
         Specification 2: Marijuana on 20071209
         Article 121 (Commit larceny)
         Sentence : BCD, CONF 122 days (time served in pre-trial and IHCA credited toward 122 days) , Forfeiture of $500.00 pay per month for 3 months, and Reduction to E-1.
         Actions of Convening Authority : Suspended the BCD upon matters of clemency, referred for Administrative Separation under Other Than Honorable Conditions

CC:      Retention Warning Counseling :

Administrative Corrections to the Applicant’s DD 214

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

         “ (84) 20071031-20080123 ”

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 P1900.16E), 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 of the UCMJ, Article 86 (greater than 30 days), Article 87, Article 92, and Article 112 (a).

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

Applicant’s Issues

Decisional issues: The Applicant contends that his misconduct was the result of his attempts to treat and self-medicate the symptoms and effects of Post - Traumatic Stress Disorder (PTSD) and that his service prior to the PTSD, coupled with his service in combat as an infantryman, mitigates the misconduct and warrants consideration for upgrade in the characterization of his service at discharge to General (Under Honorable Conditions).

Decision

Date: 20 1 1 08 02 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 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. With respect to elements of a discharge adjudged b y a c ourt- m artial, relevant and material facts stated in a punitive trial by court-martial are presumed by the NDRB to be established facts. T he NDRB completed a thorough review of the circumstances that led to discharge, and the discharge process, to ensure the discharge met the pertinent standards of equity and propriety. The Applicant enlisted in the Marine Corps at age 17 with parental consent as an Infantryman . He was enlisted with waiver to enlistment and induction standards due to an adjudicated pre-service law violation of a serious offense. The Applicant signed the Marine Corps Policy Concerning Illegal Use of Drugs on 17 January 2005 , acknowledging that he was fully aware of the Marine Corps’ policy of zero tolerance for drug abuse. He acknowledged the consequences of violation of that policy in writing, prior to entry. The Applicant ’ s official service record documents that he is a combat veteran, having served in Operation IRAQI FREEDOM and that he received a Combat Action Ribbon for his personal combat actions on 22 September 2006 while supporting 2d Battalion, 3d Marines in Haqlaniyah, Iraq (Haditha Triad) . Furthermore, the Applicant was diagnosed - in service - with PTSD. Post - service, the Applicant’s diagnosis of PTSD was re-affirmed by the Department of Veterans Affairs (VA) and assigned an overall disability rating of 50% for PTSD. The Applicant’s record of service reflects no paragraph 6105 retention-counseling warnings but does contain two nonjudicial punishments for violations of the Uniform Code of Military Justice (UCMJ): specifically, Article 92 (Failure to obey order or regulation , 2 specifications) and Article 11 1 ( Drunken or reckles s operation of a motor vehicle).

Furthermore, the Applicant’s service record reflects conviction by Special Court-Martial for violations of the UCMJ : Article 86 (Absent without leave – absenting himself from his unit, without authority, and so remaining absent for a period greater than 30 days until being apprehended by civilian authorities ) , Article 87 ( M issing unit movement), Article 92 ( F ailure to obey lawful order or regulation, 2 specifications of underage drinking), Article 112a (Wrongful use, possession, etc of controlled substances - 2 separate specifications of wrongful use of marijuana and cocaine), and Article 121 (Larceny, non-military value of $1.00). Violation of Article 112a is an offense requiring mandatory processing for separation, regardless of time in service or grade, and usually results in , at a minimum, administrative separation with an unfavorable characterization of discharge. Based on the requirement to maintain good order and discipline in the service, Commanders may also pursue confinement and punitive discharge through a Special or General Court-Martial. In this specific case, the Command chose to refer the Applicant to trial by Special Court-Martial instead of opting for the more lenient, non-punitive punishment and administrative discharge process.

While pending trial by Special Court - Martial, the Applicant entered into a pre-trial agreement with his command; he pled guilty in a trial by judge alone to the specifications, as charged , and agreed to waive any administrative board hearing in consideration for a limitation of confinement . The Applicant was found guilty of the charges as specified, was adjudged a Bad Conduct Discharge, ordered to confinement for 122 days , ordered a forfeiture of pay , and was reduced in rank to E-1 (Private). Based on the pre-trial confinement and time spent confined in the hands of civilian authorities, the Applicant was credited with time served. The Applicant submitted a request for clemency to the Convening Authority prior to him taking final action on the adjudged sentence . The Convening Authority considered the Applicant’s clemency request, his service record, and his combat deployment history and disapproved the B ad C onduct D ischarge as adjudged at the S pecial C ourt -M artial. With no Bad Conduct Discharge remaining due to clemency, the Convening Authority processed the Applicant for an administrative discharge pursuant to paragraph 6210.6 of the Marine Corps Separation and Retirement Manual. When notified of the administrative separation process, the Applicant exercised right to consult with qualified legal counsel and chose to submit written matters for the Separation Authorit y’s consideration. The Applicant waive d his right to an administrative discharge board pursuant to his pre-tr i a l agreement.

The NDRB is authorized to consider post-service factors 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. However, 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 in the civilian life, subsequent to leaving the service. The Applicant provided post-service documentation for consideration by the NDRB to include a personal statement to the NDRB and his confirmation of his VA disability rating decision .

Decisional Issue (Propriety/ ) . The Applicant contends that his misconduct was the result of his attempt to treat and self-medicate the symptoms and effects of PTSD. He further contends that his service prior to PTSD, coupled with his service in combat as an infantryman, mitigates the misconduct and warrants consideration for upgrade.

Propriety – The Applicant was subject to trial by military judge alone at a Special Court Marital. He was found guilty of the charges as listed in the preceding paragraphs and was adjudged a reduction in rank , confinement and to be discharged with a Bad Conduct Discharge. The Convening Authority granted clemency and dismissed the Bad Conduct Discharge . In accordance with paragraph 6210.6 of the MARCORSEPMAN ( Misconduct - Commission of a Serious Offense), a Marine may be processed for separation for the commission of a serious military or civilian offense when the specific circumstances of the offense warrant separation and a punitive discharge would be authorized for the same , or a closely related offense , under the UCMJ. The charges in which the Applicant was found guilty of violating (Article 86/87/92/112(a) ) each warrant ed punitive discharge and confinement for up to five years, if adjudged at trial by S pecial or G eneral C ourt -M artial. As each of the charges to which the applicant 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. Upon release from confinement, the Applicant was separated administratively for the total misconduct of his service record pursuant to paragraph 6210.6 of the MARCORSEPMAN. The Applicant was notified of, and was subsequently awarded, a n Under Other Than Honorable Conditions characterization. T he NDRB determined that the evidence of record established the basis for discharge and the actions were proper. Accordingly, relief based on propriety is not warranted.

Equity - The Applicant contends that his PTSD was a mitigating factor in his misconduct. The Applicant’s medical and service record reflect that he was diagnosed - in service - with PTSD, which has been affirmed by the VA with a VA disability rating of 50% effective the date of the Applicant’s discharge . Based on the absence of any documented adverse conduct in the record before the Applicant ’ s combat service, the details of the events surrounding the Applicant’s service in Iraq , the in-service diagnosis of PTSD ( which was re-affirmed by the VA ) , and individual issues unique to this case, the NDRB determined that the Applicant’s PTSD was a mitigating factor associated with his in-service misconduct of record. However, the NDRB did not find the diagnosis of PTSD to be a reason to absolve completely the Applicant of his misconduct. T he evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions. Based on a review of the evidence of record, the medical findings and detailed diagnosis of PTSD, coupled with circumstances unique to this case, the NDRB determined that the discharge was proper, but inequitable. By a vote of 5-0, the NDRB determined that the Applicant’s service was honest and faithful, but that significant negative aspects of the member’s conduct or performance of duty did outweigh the positive aspects of the member’s service record. As such, a General (Under Honorable Conditions) characterization of service at discharge is warranted; relief as requested is provided.

Summary: After a thorough review of the available evidence, to include the Applicant’s documentation, summary of service, service record entries, results of trial by special court martial, and the discharge process, the NDRB determined that Therefore, the awarded characterization of service shall change to GENERAL (UNDER HONORABLE CONDITIONS), but 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 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 | 2011_Marine | MD1100022

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