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USMC | DRB | 2011_Marine | MD1100248
Original file (MD1100248.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20101109
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)       20030926 - 2004 0909     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20040910     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20080801      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 23 D a y ( s )
Education Level:        AFQT: 68
MOS: 3521
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle (w/1 bronze service star)

Periods of CONF :

NJP:

- 20051203 :      Article (Disrespectful in language and attitude toward a non-commissioned officer, who was then in the execution of his office, by saying to him “this is bullshit” or words to that effect)
         Article (Failure to obey a lawful order, did not get up when told to wake up and get out of his rack)
         Awarded: Suspended:

- 20060823 :      Article (Disrespectful in language toward a non-commissioned officer by saying , “I am not having this shit” or words to t hat effect)
         Awarded: Suspended:

- 20070810:      Article (UA from his appointed place of duty until he notified the Motor P ool at 1500)
          Article (Insubordinate toward a w arrant o fficer, non commissioned officer, or petty officer)
         Article (Failed to obey an order or regulation )
         Awarded : Susp ended:

SCM:     SPCM:    CC:

Retention Warning Counseling :

- 20041109 :       For providing two recruits from your platoon with directions on how to leave Par r is Island.

- 20070430 :       For violation of A rticle 91, insubordinate conduct toward a Warrant Officer, NCO , or PO. Specifically , for verbally disrespecting every NCO in the platoon by saying “NCOs are worthless and have the common sense of his boot . ”


- 20071003 :       For personality disorder , you are unable to perform your duties as a Marine. Specifically , you were evaluated by the division p sychiatrist for being fit for full duty ; p sychiatrist also stated that you manifest a long-standing disorder of character and behavior that is so severe that your ability to function effectively in the military may be significantly impaired

Administrative Corrections to the Applicant’s DD 214

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

         Block 28 NARR A TIVE REASON FOR SEPARATION should read “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

 1.       The Applicant wants access to VA benefits.
2 .        The Applicant contends his unauthorized absence (UA) was for a medical appointment, and his command wa s informed of his whereabouts.
3 .       The Applicant contends P ost -T raumatic S tress D isorder ( PTSD ) from his service in Iraq mitigates his misconduct.
4 .       The Applicant contends his combat service warrants an Honorable characterization of service.
5.       Post-service conduct.

Decision

Date : 2012 0202             Location: Washington D.C .        R epresentation :

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

Discussion

As a result of the Applicant’s claim of PTSD, i n 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 discharg e if such change is warranted. In reviewing discharges, the Board presumes regularity in the conduct of g overnment al affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Applicant’s record of service included 6105 counseling warnings and for o f the Uniform Code of Military Justice (UCMJ): Article (Unauthorized absence, ), Article ( Disrespectful language to a noncommissioned officer , ), and Article (Failure to obey an order or regulation, ). Based on the , command administratively processed for separation . When notified of administrative separation processing, the Applicant rights to consult with a qualified counsel and submit a written statement, but elected his right to request an administrative board. The administrative board recommended separation with an Under Other Than Honorable Conditions characterization of service.

Issue 1: (Nondecisional) The Applicant wants access to VA 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.
: (Decisional) ( ) . The Applicant contends his UA was for a medical appointment, and his command was informed of his whereabouts. The record contained no evidence to support the Applicant’s contention. Other than his own statement, the Applicant provided no documentation or evidence in support of his issue. Even if the NDRB assumed that the Applicant’s statement is correct, it does not change the fact that the Applicant still had a Pattern of Misconduct with his two other NJPs and three retention warning counselings and still met the requirements for an administrative separation. Relief denied.

: (Decisional) ( ) . The Applicant contends PTSD from his service in Iraq mitigates his misconduct. The Applicant’s post-deployment survey shows he displayed symptoms of PTSD. Medical records also show he suffered from nightmares and seizures. He was diagnosed with adjustment disorder with depressed mood but was found fit for duty. Multiple suicidal gestures are noted in his medical records. However, the NDRB found no evidence the Applicant’s mental condition was of such severity as to render him incapable of abiding by Marine Corps rules and regulations. The record indicates the Applicant was responsible for his behavior and should be held accountable. The NDRB determined an upgrade for this issue would be inappropriate. Relief denied.

: (Decisional) ( ) . The Applicant contends his combat service warrants an Honorable characterization of service. While the NDRB appreciates the Applicant’s combat service, the Applicant displayed a pattern of misconduct, including several serious offenses, that warranted administrative separation and could have resulted in confinement and a punitive discharge if adjudicated at special court-martial. The Applicant’s case was heard before an administrative separation board that recommended separation with an Under Other Than Honorable Conditions characterization. The NDRB found no evidence of impropriety or inequity in the Applicant’s separation process. Relief denied.

Issue 5: (Decisional) ( ) . The Applicant requested the NDRB consider post - service conduct as a basis to gain a more thorough understanding of performance and conduct during the period of service under review . The Applicant provided no documentation other than a statement to support a post-service conduct review. The Applican * t could have provided documentation as specified in the Post-Service Conduct paragraph in the Addendum , however, completion of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case by case basis to determine if post - service conduct establishes a reason to change the characterization or narrative reason. Due to the lack of documentation and evidence submitted, the NDRB determined an upgrade for thi s issue would be inappropriate. Relief denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice, r ecord e ntries, and d ischarge p rocess, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall . 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, Automatic Upgrades, 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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