Upgrade.Vet

USMC | DRB | 2011_Marine | MD1100631

Original file (MD1100631.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20110105

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)       20040308 - 20040329     Active: 20040330 - 20070917 HON

Period of Service Under Review:
Date of Current Enlistment: 20070918     Age at Enlistment: 22
Period of E nlistment : Years Months
Date of Discharge: 20100312      H ighest Rank:
Length of Service : Y ea rs M on ths 23 D a ys
Education Level:        AFQT: 52
MOS: 0431
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle SS GCM ACM SSDR ICM GWOTSM NDSM L o A C o C MM

Periods of UA / CONF :

NJP: NONE                 SCM: NONE                 SPCM: NONE               CC: NONE

Retention Warning Counseling : 7

- 20080327 :       For failure to accept medical treatment in the form of medication that was recommended by psychiatrist for treatment of psychological condition while deployed to Kandahar A irfield , Afghanistan. You are being returned to CONUS from a combat deployment in support of Operation Enduring Freedom due to your inability to cope with stress and are therefore not combat effective. You will undergo medical treatment as directed at a medical facility outside of Kandahar Airfield, Afghanistan in order to be returned to full duty status. This deficiency makes you nondeployable.

- 20080415 :       For violation of Art icle 86 of the UCMJ in t h at you were 90 mins late for work on 7 Apr 2008, 2 hours late for work on 11 Apr 2008, and 20 mins late for work on 14 Apr 2008; and Article 92 of the UCMJ in that on 14 Apr 2008 you were cited by MCAS Cherry Point PMO for illegally scaling the flight line fence.

- 20080417:      For P ersonality D isorder .

- 20080625:      For diagnosis of a personality disorder, specifically: Adjustment Disorder with M ixed E motional F eatures . You have been previously counseled for demonstrating these types of behaviors.

- 20080716:      For violation of Art icle 86 of the UCMJ in that you were 10 mins late to work on 8 Jul 2008 and not at your appointed place of duty from 1000 to 1400 on 8 Jul 2008.

- 20090708:      For violation of Art 86 of the UCMJ. On 24 Jun 2009, you failed to be at your prescribed place of duty in the VMGR-252 S-4 shop at 0730. You further failed to notify your chain of command and did not arrive at your unit until 1100 .

- 20091009:      For failure to be at app ointed place of duty without proper authority (Art 86) and failure to be in appropriate uniform of the day (Art 92). On 3 Oct 2009, you failed to obey an order or regulation in that you wrongfully continued inappropriate relationships with subordinates within your command.

Administrative Corrections to the Applicant’s DD 214

The NDRB note d an administrative error on the original DD Form 214:

         “ CONTINUOUS HONORABLE ACTIVE SERVICE FROM 20040330 UNTIL 20070917 ”

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.       Applicant seeks a discharge upgrade to obtain veteran benefits .
2.       Applicant seeks RE code and discharge upgrade s to reenlist in the U.S. Armed Forces.
3.       Applicant contends his discharge was improper and should have been based on medical reasons.
4.       Applicant contends his discharge was improper /inequitable based on his six years of honorable service, without NJP, which included three deployments.
5.       Applicant claims personal and family problems he was experiencing mitigates the misconduct for which he was separated.

Decision

Date: 20 1 2 0 3 28          Location: Washington D.C .         R epresentation : NONE

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 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’s record of service included seven 6 105 counseling warnings . There was no evidence of commanding officer nonjudicial punishment (NJP) or trial by courts-martial. Based on the repeated offenses committed by the Applicant, his command administratively processed him for separation . When notified of a dministrative separation processing using the procedure on 8 Sep 2009 , the Applicant exercised rights to consult with a qualified counsel, submit a written statement, and request an administrative separation board . The Administrative Separation Board recommended the Applicant be separated with an Under Other Than Honorable Conditions characterization of service due to a Pattern of Misconduct. On 9 Sep 2009, the Applicant’s Commanding Officer submitted a request for administrative separation of the Applicant stating , “… (The Applicant’s) day to day performance has been below average, characterized by his repeated misconduct and subsequent documentation. (The Applicant) was counseled on 15 Apr 2008 for numerous violations of Art 86 and one violation of Art 92 (citation received from PMO for illegally scaling flight line fence). Although (the Applicant’s) rebuttal attempts to explain away each Art 86 violation, he fails to address the fact that he knowingly and willingly violated Art 92 by unlawfully scaling the flight line fence. (The Applicant) was counseled on 8 Jul 2008 for two violations of Art 86. Similarly, (the Applicant) attempts to refute the charge of arriving ten minutes late but provides no justification in response to the second charge of unauthorized absence from 1000-1400. (The Applicant) was again counseled on 22 Jun 2009 for violations of Art 86 (misleading information to a medical officer). In (the Applicant’s) rebuttal, he states he informed the Medical Officer that he was sent home from deployment due to marital issues, when the actual reason was suicidal ideation. On 8 Jul 2009, (the Applicant) was counseled for yet another violation of Art 86. (The Applicant) responded that he was under the influence of prescribed medication. Interestingly, (the Applicant) admitted to not taking medication during any of his previous Art 86 violations. On 10 Sep 2009 (the Applicant) was subject to a competency review board where he was reduced to the rank of Corporal due to his professional incompetence. He has firmly established a pattern of misconduct and refuses to accept responsibility for his actions, preferring instead to offer a litany of excuses … . (The Applicant’s) well documented lack of judgment and failure to conform to military standards are evident in statements made by his chain of command. (Capt X) was his OIC from Apr to Jul 2008. During that period (Capt X) rated (the Applicant’s) performance as below average, with no ability for rehabilitation, and characterized his performance as having an adverse effect on squadron morale … . First Lieutenant X (1st Lt X) was (the Applicant’s) OIC for a short period before his deployment to OEF and during this period of observation found (the Applicant’s) performance to be below average. He further described (the Applicant) as dishonest, a hindrance to his unit, and stated that he should be separated with a General discharge. Warrant Officer Z (WO Z) was (the Applicant’s) OIC during his deployment with MAG 40 to OEF and observed the member from Mar to Jun 2009. WO Z noted several periods where (the Applicant) was late for duty and even characterized his return to CONUS as a force multiplier. Gunnery Sergeant A (the Applicant’s SNCOIC prior to deployment to OEF) noted his performance was below average. He also characterized (the Applicant) as an untrustworthy individual who requires constant supervision … . Throughout interview (with CO and SgtMaj), (the Applicant) was defensive in nature and unaccountable for his actions … .

(The Applicant) was evaluated by a clinical psychiatrist upon return to the squadron on 18 Jun 2009. He was foun d to have a significant and pervasive character disorder that is believed to predate his entrance into military service. The recommendation to the command was to process for routine administrative separation … . (The Applicant) did not return the acknowledgment of rights nor submit a statement in rebuttal to these proceedings . ” On 28 Sep 2009, the Commanding Officer Marine Aircraft Group 14 endorsed the Applicant’s administrative separation package stating , “(the Applicant) has had multiple disciplinary issues and numerous 6105 counselings. (The Applicant) has demonstrated a continuous pattern of misconduct since his entry into the Marine Corps and shows no signs of improvement. SNM continues to be disruptive to his fellow Marines and to the good order and discipline of the U.S. Marine Corps. I recommend (the Applicant) be administratively separated from the U.S. Marine Corps with an Under Other Than Honorable Conditions characterization of service…by reason of Pattern of Misconduct . ” On 19 Feb 2010, the Separation Authority, in concurrence with the Admin Sep Board and the Applicant’s chain of command, directed that the Applicant be separated from the Marine Corps with an Under Other Than Honorable Conditions discharge due to Pattern of Misconduct.

: (Nondecisional) The Applicant seeks a discharge upgrade to obtain veteran 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. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities as r egulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.

: (Nondecisional) The Applicant seeks RE code and discharge upgrade s to reenlist in the U.S. Armed Forces. 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 B oard for Correction of Naval Records 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.

: (De cisional) ( ) . The Applicant contends his discharge was improper and should have been based on medical reasons. T he 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 B oard for Correction of Naval Records can grant this type of narrative reason change. Moreover, 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. After detailed review of all the available evidence, the NDRB determined that the Applicant’s discharge for pattern of misconduct was proper , equitable, and in accordance with the applicable orders and directives in effect at the time of his separation. Relief denied.

Issue 4 : (Decisional) ( ) . The Applicant contends his discharge was improper/inequitable based on his six years of honorable service, without NJP, which included three deployments. Per the Marine Corps Separation and Retirement Manual (MARCORSEPMAN), a n H onorable characterization of service is warranted when the quality of a member’s service generally meets the standard of acceptable conduct and performance for naval personnel, or is otherwise so meritorious that any other characterization of service would be clearly inappropriate. A G eneral ( U nder H onorable C onditions) 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 outweigh the positive aspects of the member’s service record. A discharge Under Other Than Honorable Conditions is warranted when a member engages in conduct involving one or more acts or omissions that constitute a significant departure from the conduct expected of members of the Naval Service. The Applicant’s record of service contained five 6105 retention warning s for misconduct that included multiple violations of UCMJ Article 86 and 92. Violations of Article 92 are considered serious offenses, punishable by a B ad C onduct Discharge and six months imprisonment if awarded at trial by court-martial. Further, t he Applicant’s service records contained a Fitness Report (dated 14 Mar-18 Jun 2009) in which the Reporting Official stated , “(The Applicant’s) performance was far below expectations. MRO was consistently late for his shift at the AAOE and could not be relied upon to complete tasks without supervision. Once the AAOE was closed, (the Applicant) was transitioned over to be a watch stander for the S-4, he could not be relied upon to be anything more than a phone watch from 0000-0700. All other tasks that he was assigned were done incorrectly , t hus causing more work for others in the section … . (The Applicant’s) initiative leaves a lot to be desired. MRO in the absence of specific direction would disappear to

complete items of a personal nature instead of checking out with his SNCOs to receive permission to leave his appointed place of duty…was ineffective in the majority of tasks assigned to him. MRO’s knowledge of embark was substandard. MRO did not actively seek out knowledge from peers in the 04 field IOT improve his MOS skill level while deployed. MRO was scheduled to be deployed to Afghanistan for a minimum of 10 months, but was redeployed early due to medical reasons. The absence of this Marine is a force multiplier … . I recommend this Marine not be considered for promotion at any time … . The Marine Corps needs to discharge this Marine. The Marine has the intelligence and physical capability to be a Marine, but possesses none of the personal drive, heart , or motivation required. MRO’s departure from Afghanistan went unnoticed by most as he was contributing nothing to mission accomplishment . ” After careful examination of and deliberation on all the available evidence, the Board determined that the Applicant’s discharge was proper and equitable, and in accordance with the applicable orders and directives in effect at the time of his separation. Accordingly, the Board found this issue to be without merit and did not provide a basis for which relief could be granted. Relief denied .

Issue 5 : (Decisional) ( ) . The Applicant claims personal and family problems he was experiencing mitigates the misconduct for which he was separated. The NDRB conducted an exhaustive review of the records and found no evidence to support, nor did the Applicant provide any evidence to indicate , that he attempted to u se the numerous services available for service members who undergo personal problems during their enlistment , such as the Navy Chaplain, Medical or Mental Health professionals, Navy Relief Society, Family Advocacy Programs, or even the Red Cross. The NDRB recognizes that serving in the U.S. Marine Corps is challenging. However, all members of the Naval Services are expected to uphold the high standards of conduct as evidenced in our Core Values of Honor, Courage, and Commitment, regardless of the environment or mission in which assigned. After careful consideration of the facts and circumstances surrounding the Applicant’s case , the Board determined this issue to be without merit and did not provide a basis for which relief could be granted . Relief denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries and the administrative separation p rocess, 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 | MD1100631

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