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USMC | DRB | 2011_Marine | MD1100138
Original file (MD1100138.rtf) Auto-classification: Denied
ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20101020
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)       20050510 - 20050515     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20050516     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 ) 00 D a y ( s )
Education Level:        AFQT: 69
MOS: 0311
Proficiency/Conduct M arks (# of occasions): ( 13 ) / ( 13 )        Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle Pistol , , , , (2) , , , , LoA (2) , CoA

Periods of UA / CONF :

NJP:

- 20081114 :      Article (Wrongful use of a controlled substance)
         Awarded: Marriage counseling and SACO Suspended:

- 200901 13 :      Article (Fail to obey a lawful order, driving on base while driving privileges were revoked)
         Awarded: Suspended:

SCM:     SPCM:    CC:      Retention Warning Counseling :

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 :        





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

Applicant’s Issues

 Nondecisional issues: The Applicant seeks an upgrade in the characterization of his service at discharge in order to facilitate access to Department of Veterans Affairs (VA) educational benefits.

Decisional issues : The Applicant contends that his characterization of service at discharge was inequitable; his service was honorable, to include combat service, and his misconduct of record was directly related to self - medicating to address symptoms of Post - Traumatic Stress Disorder (PTSD) and were not indicative of his service.

Decision

Date: 20 1 20105                  Location: Washington D.C .         R epresentation :

By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall .
Discussion

 The NDRB reviewed the Applicant’s personal statement; the Applicant stated that he was suffering from PTSD related to combat service in Iraq . As such, in accordance with U.S. Code, Title 10, Section 1553 (d) (1), the board included a member who is a physician, clinical psychologist, or psychiatrist. Additionally, i n accordance with section 1553 (d) (2), the service secretary expedited a final decision and accorded the case sufficient priority to ac hieve an expedited resolution.

The record of service documents that the Applicant is a combat veteran, having completed a combat deployment as an Infantryman in the Al-Anbar Province of Iraq while in support of Operation IRAQI FREEDOM (OIF) - March 2006 to October 2006 . The military service record further documents that he was awarded the Combat Action Ribbon for actions while engaged in direct combat operations against enemy forces.
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 identif ied one decisional issue for the NDRB’s consideration ; additionally , the NDRB conducted 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 both equity and propriety.

The Applicant entered military service at age 18 on a four year enlistment with a guaranteed contract of Infantry Option. The Applicant’s enlistment record reflects his entry into military service with a waiver to enlistment and induction standards due to self- admitted pre-service drug use (marijuana x1) . During the enlistment process, the Applicant acknowledged his complete understanding of the Marine Corps Policy Concerning the Illegal Use of Drugs - in writing - on 05 May 2005 . The Applicant completed his four-year enlistment obligation and was discharged upon completion of his required active service . The Applicant’s record of service during his enlistment reflects no 6105 retention-counseling warning s having been issued . However, the Applicant’s service record documents two nonjudicial punishments for violations of the Uniform Code of Military Justice (UCMJ), specifically: Article 9 2 ( Failure to obey an order or regulation - driving on base with suspended driving privileges) and Article 112(a) ( Wrongful use, possession, etc., of a controlled substance).
Non-decisional Issue - The Applicant seeks an upgrade to his discharge characterization of service in order to achieve eligibility for Department of Veterans Affairs (VA) educational benefits. There is no requirement, or law, that grants re-characterization solely on the issue of facilitating access to VA educational benefits. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities. Regulations limit the NDRB’s review solely to a determination of the propriety and the equity of a discharge. As such, this issue does not serve to provide a foundation upon wh ich the NDRB can grant relief.



Decisional Issue ( Propriety/ ) . The Applicant contends that his characterization of service at discharge was inequitable; his service was honorable, to include combat service, and that his misconduct of record was directly related to self - medicating to address symptoms of PTSD and were not indicative of his service.

Propriety - A n Honorable characterization of service is the highest quality of characterization and is appropriate when the quality of the Marine’s service has met the standards of accepted conduct and performance of duty for military personnel. Paragraph 1004 of the Marine Corps Separation and Retirement Manual specifies that upon expiration of an active duty service enlistment, the characterization of service received will be H onorable for those Marines who have average P roficiency marks of 3.0 or higher and average C onduct marks of 4.0 or higher. Furthermore, 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. The Applicant completed his obligated service commitment and the documented overall marks for proficiency and conduct were 3.7 and 3.7 , respectively - warranting the lesser characterization of service of General (Under Honorable Conditions).

In review of the applicant’s assigned P roficiency and C onduct markings , the NDRB determined that the Applicant’s marking s were assigned improperly. The Applicant received repetitive Reduction Marks for the same misconduct of record ( 1.9/1.9 marks) and then erroneous semi-annual mark ings of 1.9/1.9 . I n accordance with paragraph 4500, table 4.3 of Marine Corps Order P1070.12k (Marine Corps Individual Records Administration Manuel), the first erroneous marks should not have been entered, and the second set of markings should have been listed as “N/A.” Accordingly, after recalculation of the Applicant’s P roficiency and C onduct markings, the NDRB determined that the Applicant’s final P roficiency and C onduct marking s , in service, were 4.1/4.1 over 12 periods - thereby warranting an Honorable characterization of service upon completion of his required active duty service obligation.

Equity - The Applicant contends that his misconduct of record was resultant from diminished coping skills, anxiety, and depression as he was suffering from PTSD, diagnosed while in service, and attempting to self-medicate to avoid the stigma of being seen and treated for mental health issues, which were mitigating factors to his misconduct. 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 issue. The NDRB requested the Applicant’s medical record from the VA ; after an in - depth review of the Applicant’s documentation, his service and medical record, the contention of PTSD was established as existing in-service . After a careful review of the Applicant’s combat deployment history, in-service mental health issues, and diagnosed PTSD, the NDRB determined the Applicant’s PTSD and associated symptoms were mitigating and contributory factors in his misconduct. However, the NDRB determined that these mitigating factors were considered by the command in allowing him to be retained and reach the completion of obligated service, vice being administratively separated from the service due to Misconduct (Drug Abuse). The violation of Article 112 (a) required mandatory processing for administrative sep aration due to service policy.

After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the NDRB discerned an impropriety in the discharge action. Without the erroneous and improper P roficiency and C onduct ma rks, the Applicant’s overall in- service markings exceed ed that which is required for the assignment of an Honorable characterization of service. Based on a re-computation of the Applicant ’ s P roficiency and C onduct marks, the NDRB discerned an im propriety in the characterization of the Applicant’s service. The Board voted unanimously to upgrade the characterization of the discharge to HONORABLE. Relief warranted .

Pertinent Regulation/Law

 A . Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 1 September 2001 until Present, Paragraph 1005, DISCHARGE FOR EXPIRATION OF ENLISTMENT OR FULFILLMENT OF SERVICE OBLIGATION .
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. Table 61 of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 1 September 2001, Guide for Characterization of Service.

 D. U.S. Code, Title 10, Section 1553 (d) (1) and (d) (2).


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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