Upgrade.Vet

USMC | DRB | 2011_Marine | MD1100159

Original file (MD1100159.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20101026

Characterization of Service Received:

Narrative Reason for Discharge:

Authority for Discharge: MARCORSEPMAN

Applicant’s Request:      Characterization change to:
         Narrative Reason change to: PTSD

Summary of Service

Prior Service:
Inactive:         USMCR (DEP)       20041119 - 20050731     Active:

Period of Service Under Review:
Date of Current Enlistment: 20050801     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20090826      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 08 D a y ( s )
Education Level:        AFQT: 39
MOS: 0311
Proficiency/Conduct M arks (# of occasions): / Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle (w/1 Campaign Star)

NJP:

- 20070312 :       Article (Drunk on duty)
         Awarded : RESTR EPD Susp ended:

- 20071213 :       Article (Breaking restrictions)
         Article 92 (Failed to obey a lawful order, consu me alcohol under the age of 21)
         Article (Drunkenness, arrested for public intoxication)
         Article 134 (Disorderly conduct, resisting arrest)
         Awarded : RESTR EPD (E-2) Susp ended:

SCM:

- 20090225 :       Art icle (Unauthorized absence 20081219-20081223 , 4 days )
         Article 90 (Willfully disobey an order, not to have any contact with wife)
         Sentence : (20081223-20090123, 3 1 days)

SPCM:

CC:

Retention Warning Counseling :

- 20070312 :       For NJP held on 20070312 for violation of A rticle 134.

- 20071213 :       For failure to obey order or regulation, specifically, drunken, disorderly conduct.

Administrative Corrections to the Applicant’s DD 214

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

         “ (4) 20081219-20081223; (31) 20081223-20090123 ”

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 P1900.16F, effective 1 September 2001 until Present, Paragraph 6210, MISCONDUCT.

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 s 90 and 92 .

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

Applicant’s Issues

1.       Applicant seeks upgrade to obtain full VA benefits.
2.       Applicant contends his misconduct was due to P ost- T raumatic S tress D isorder (PTSD) resulting from his combat deployment to Iraq.

Decision

Date: 20 1 1 05 12          Location: Washington D.C .         R epresentation :

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

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 Board presumes regularity in the conduct of g overnment al a ffairs 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 Board ’s consideration . T he Board complete d a thorough review of the circumstances that led to discharge and the discharge process to ensure discharge met the pertinent standards of equity and propriety. The Applicant’s record of service included 6105 counseling retention warnings for violations of U niform Code of Military Justice (U CMJ ) Article 134 (Drunk on duty while deployed in Iraq, 30 Dec 2006 and Disorderly conduct and public drunkenness, 22 Nov 2007 ) , for o f the UCMJ: Article 92 ( Failure to obey order or regulation, 2 specifications: Breaking restriction, 13 Nov 2007 , and Consumption of alcohol under age of 21, 22 Nov 2007 ) and Article 134 ( General a rticle, 3 specifications: Drunk on duty while deployed in Iraq, 30 Dec 2006; Drunkenness/public intoxication, 22 Nov 2007; Disorderly conduct/resisting arrest, 22 Nov 2007). The Applicant’s record also reflected one for of the UCMJ: Article 86 ( Unauthorized absence , 19-23 Dec 2008, terminated by arrest/apprehension by local police due to domestic violence incident at residence of spouse ) and Article 90 (Willfully disobey order of superior commissioned officer, not to have contact with his wife, 17 and 23 Dec 2008) . Based on medical evidence of possible PTSD and/or possible TBI due to a nearby RPG warhead detonation in Iraq, the Applicant was being processed for a P hysical E valuation B oard (PEB) during the Fall of 2008. Due to the serious misconduct committed by the Applicant in Dec 2008, the PEB process was halted and the Applicant was placed in pre-trial confinement awaiting trial by court-martial. After conviction at s ummary c ourt -m artial in Feb 2009 and a subsequent spousal abuse/domestic violence incident in Jun 2009, the Applicant’s command processed him for administrative separation. The NDRB did not have the Applicant’s administrative separation package to determine whether the Applicant exercised or waived rights to consult with a qualified counsel, submit a written statement, and request an administrative separation board . The Applicant’s DD-214 reflects a separation code of HKQ1 , which indicates he waived his right to an a dministrative separation b oard. The Applicant was separated from the Marine Corps on 26 Aug 2009 with a n Under Other Than Honorable Conditions discharge due to Misconduct (Commission of a Serious Offense).

: (Nondecisional) The Applicant seeks an upgrade to obtain full VA benefits. The U.S. Department of Veterans Affairs 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.

: (Decisional) ( ) . The Applicant contends his misconduct was due to PTSD and TBI resulting from his combat deployment to Iraq. The Board conducted an exhaustive review of the Applicant’s service and medical records to determine whether the Applicant’s documented PTSD contributed to or was a significant factor in his post-combat deployment misconduct. After extensive analysis of and deliberation on the facts and circumstances involving the Applicant’s case, the Board found that PTSD was a factor in his aberrant behavior , which manifested after his return from combat operations in Iraq. Accordingly, the B oard determined that partial relief to General (Under Honorable Conditions) was warranted . Full relief to Honorable was not granted due to the serious and repetitive nature of the misconduct . The narrative reason for separation was not changed to PTSD as that is not an authorized entry.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, and medical record entries, the Board 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 discharge. The Applicant is directed to the Addendum for additional information.

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 | MD1100159

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