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USMC | DRB | 2011_Marine | MD1100829
Original file (MD1100829.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20110211
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)       20021214 - 20030506     Active:   20030507 - 20061015 HON

Period of Service Under Review:
Date of Current Enlistment: 20061016     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20090212      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 27 D a y ( s )
Education Level:        AFQT: 37
MOS: 1812 (Tank Crewman)
Fitness R eports:

Awards and Decorations ( per DD 214):      (w/1 Star) (w/1 Star) NMUC MM CoA

Period of UA :

NJP:     SCM:              CC:

SPCM:

- 20081121 :       Article (Violate a lawful general order), 7 specifications
         Specification 1: Wrongfully striking numerous recruits with excessive force to correct the position of recruits.
         Specification 2: Wrongfully hazing numerous recruits: ordering recruits to fall from the standing position to their knees onto the cement ground.
         Specification 3: Wrongfully hazing numerous recruits: ordering recruits to clean and exercise in the shower room for an extended period of time and creating a “gas chamber” effect by mixing excessive amounts of concentrated bleach and/or cleaning solution, body wash, and hot water.
         Specification 4: Wrongfully submitting numerous recruits to unauthorized incentive training by ordering recruits to clean their rifles over their heads for an extended period of time.
         Specification 5: Wrongfully failing to allow numerous recruits a minimum twenty minutes to consume their meal in violation of the Depot SOP.
         Specification 6: Wrongfully hazing recruits: ordering them to ingest “clean, lubricate, protect” (CLP) fluid, a known hazardous substance.
         Specification 7: Wrongfully hazing recruits: forcing them to wear a female Marine uniform prior to taking the Platoon photograph.
         Article 107 : False official statement “I did not witness or participate in any of the misconduct alleged by recruits of Platoon 2048, Company G,” which statement was totally false.
         Article 128 (Assault), 4 specifications
         Specification 1: Unlawfully choke numerous recruits on diverse occasions.
         Specification 2: Unlawfully strike numerous recruits in their throats with the edge of his ha n d between his little finger and wrist in a chopping motion (“knife hand”), and with the area between his thumb and forefinger in a jabbing motion (“throat chop” or “throat jack”).
         Specification 3: Unlawfully punch numerous recruit in the face.
         Specification 4: Unlawfully kick numerous recruits.
         Sentence : CONF 89 days, RIR to E-4 [confinement in excess of 60 days deferred, Confined 20081121 - 20090119]

 Retention Warning Counseling :

- 20081117 :       For violation of Depot Order 1513 6A (Recruit Training Order. On 20081015, you were relieved by the Commanding General due to drill malpractice. Your MOS of 0911 is voided and you are be ing transferred to a non-special duty assignment bille t until completion of further administrative and legal matters.

Administrative Corrections to the Applicant’s DD 214

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

          “ CONTINUOUS HONORABLE ACTIVE SERVICE FROM 030507 UNTIL 061015 ”
        
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 Dis charge 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 92, 107, 128 .


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

Applicant’s Issues

 1.       Nondecisional issues: The Applicant seeks an upgrade in the characterization of his service at discharge to Honorable in order to warrant VA b enefits and to facilitate employment opportunities.

2.       Decisional issues: T he Applicant contends that he should not have been discharge d for misconduct due to his in-service diagnosis of Post - Traumatic Stress Disorder (PTSD), which warrants consideration for a medical discharge. Additionally, the Applicant contends that h is in-service diagnosis of PTSD, and the severity of this disability, caused his misconduct; as such , he warrants consideration for an upgrade in the characterization of service due to the mitigat i n g effects of PTSD.

Decision

 Date: 20 1 1 0602   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. The Applicant identified two decisional issue s for review by the NDRB . Additionally, 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’s record of service in his most recent enlistment contains one 6105 retention-counseling warning regarding his misconduct and possible discharge or punitive or administrative legal ramifications if he failed to take corrective action. Additionally, the Applicant’s record of service include s a conviction by S pecial C ourt -M artial for violations o f the Uniform Code of Military Justice (UCMJ) , specifically :

•         Article 92 - Failure to obey lawful orders or regulations , 7 separate specifications of violation of a lawful written order regarding hazing and abuse of multiple recruits
•         Article 107 - False official statement
•         Article 128 – Assault , 4 separate specifications of physically assaulting multiple recruits .

Based on the severity of the offenses committed by the Applicant, and the violation of the special trust and confidence placed in a Drill Instructor, the command administratively processed for separation pursuant to paragraph 6210. 6 of the Marine Corps Separation and Retirement Manual (MARCORSEPMAN): Misconduct - C ommission of a Serious Offense . The basis for this recommendation was the Applicant’s conviction at a Special Court-Martial on 21 November 2008 for the offenses as outlined above. At a Special Court - Martial trial by j udge alone , the Applicant was found guilty and was adjudged a reduction in rank to Corporal and ordered to serve 89 days of confinement. Based on a written request for clemency, the convening authority deferred all confinement in excess of 60 days ; the Applicant was released subsequently from confi nement on 20 January 2009. When notified of the administrative separation process using the notification procedure, the Applicant exercised right to consult with legal counsel and chose to submit written matters for the Separation Authorit y’s consideration. The Applicant did not warrant an administrative discharge board due to the least favorable characterization of service being General (Under Honorable Co nditions).

The Applicant ’ s official service record documents that he was a combat veteran, having served in Operation IRAQI FREEDOM and that he received a Combat Action Ribbon for his personal actions on 22 November 2006 while supporting 2d Battalion, 3d Marines in Haditha , Iraq . 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); the Applicant was assigned an overall disability rating of 70 % for PTSD (Service Connected, Gulf War incurred) and Traumatic Brain Injury (TBI) (Service Connected, Gulf War incurred).

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 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, copies of his Congressional Inquiries, and his confirmation of V A ratings and benefit payments.

Nondecisional Issue - Applicant seeks relief by an upgrade in his characterization of service at discharge in order to access VA benefits to attend school and to facilitate employment opportunities . There is no requirement, or law, that grants re-characterization solely on the issue of obtaining VA benefits. As such, 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. Regulations limit the NDRB’s review solely to a determination of the propriety and the equity of a discharge.

Decisional Issue ( Propriety/ ) . The Applicant contends that he should not have been discharge d for misconduct due to his in-service diagnosis of PTSD, which warrants consideration for a medical discharge. Additionally, the Applicant contends that his in-service diagnosis of PTSD, and the severity of this disability, caused his misconduct; as such, he warrants consideration for an upgrade in the characterization of service due to the mitigating effects of PTSD .

Propriety - The Applicant was subject to trial by military judge alone at a Special Court - Mart i al. He was found guilty of the charges as listed in the preceding paragraphs and was adjudged a reduction in rank and confinement. 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 under the following circumstances: (1) t he specific circumstances of the offense warrant separation; and (2), 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 s 92/107/128) warrant 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 A pplicant was found guilty of violating warranted 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 adjudicated misconduct pursuant to paragraph 6210.6 of the MARCORSEPMAN . T he Applicant was notified of, and was subsequently awarded, a General (Under Honorable Conditions) characterization of his service at discharge. In accordance with paragraph 1004.4.C. of the MARCORSEPMAN, the command was not required to seek approval of the Deputy Commandant, Manpower and Reserve Affairs for separation based on a S pecial C ourt -M artial alone , since they did not seek a characterization of service of U nder O ther T han H onorable C onditions .

DoD disability regulations do not preclude disciplinary action and separation if warranted. SECNAVINST 1850.4 E stipulates that separations for misconduct take precedence over potential separations for other reasons (i.e. , medical disability). Whenever a member is being processed through the Physical Evaluation Board (PEB), and subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended. The PEB case remains in suspense pending the outcome of the non-disability proceedings. If the action includes either a punitive or an administrative discharge for misconduct, the medical board report is documented in the member’s terminated health record. As such, even if the Applicant had been recommended for a medical board evaluation, the misconduct separation would have terminated the action. As such, the 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 s reflect that he was diagnosed - in service - with PTSD and TBI and that he was recommend ed to receive residential inpatient treatment for the same. Based on the absence of any documented adverse conduct in the record before the S pecial C ourt -M artial , coupled with the detailed medical evaluations contained in his service medical records, the NDRB determined the Applicant’s diagnosed PTSD was a mitigating factor associated with his in-service misconduct of record. However, the NDRB did not find the diagnosis of PTSD and TBI to be a reason to absolve completely the Applicant of his misconduct . While the Applicant may feel that his diagnosis of PTSD was the underlying cause of his misconduct, the record clearly reflects deliberate and willful misconduct that was known at the time to be wrongful. The evidence of record, to include the Applicant’s Forensic Psychological Evaluation, did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions.



The NDRB determined that the Applicant received equitable treatment in his discharge action; misconduct of the nature stated easily warrants a Bad Conduct Discharge , confinement in excess of 89 days , and a reduction in rank to E-1/Private . The Applicant was retained, he was reduced only one rank, and he was ordered confined for less than 90 days, thereby avoiding the automatic pay forfeiture requirement from applying. Furthermore, the NDRB determined that the evidence of record was sufficient enough to substantiate a discharge characterization of service of Under Other Than Honorable Conditions had the Separation Authority determined it warranted - this characterization of service would have been equitable and consistent with the characterization of discharge given others in similar circumstances. T he Applicant’s command specifically opted not to seek a less than honorable discharge characterization in order to ensure the Applicant would remain eligible for medical treatment through the VA system and would retain basic v eteran’s benefits . Moreover, the Applicant received post - trial clemency from the convening authority through the granting of a deferment of all confinement in excess of 60 days. Accordingly, the NDRB determined that the Applicant’s in - service diagnosis of PTSD was considered as a mitigating factor to his misconduct of record and was directly considered in the determination of his characterization of service at discharge. Based on a review of the evidence of record and the circumstances unique to this case, the NDRB determined that there was sufficient evidence to support a basis for discharge due to Misconduct ( Commission of a Serious Offense ) and that the characterization of service at discharge was e quitable. Moreover, the NDRB determined that the Applicant’s characterization of service at discharge gave due consideration to the Applicant’s diagnosis of PTSD and his combat service and was more than equitable. As such, an upgrade to Honorable is not warranted . R elief denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s documentation, summary of service, record entries, and discharge process, the NDRB determined that 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, 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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