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USMC | DRB | 2011_Marine | MD1101191
Original file (MD1101191.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20110408
Characterization of Service Received:
Narrative Reason for Discharge: UNACCEPTABLE CONDUCT
Authority for Discharge: SECNAVINST 1920.6C, MCO P1900.16F PAR 4104

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

Summary of Service

Prior Service:
Inactive:         USMCR (DEP)       NFIR      Active:   19970529-19971004 USMCR
                                             19971005-19971121 OCS (UNC)
                                             19971205-19980124 USMCR
                                             19980125-19980402 Accepted commission
Period of Service Under Review:
Date of Current Enlistment: 19980403     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20071206      H ighest Rank: Capt
Length of Service : Y ea r ( s ) M on th ( s ) 3 D a y ( s )
Education Level:        AFQT: 84
MOS: 0402
Proficiency/Conduct M arks (# of occasions): NA   Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle Pistol (2) MCR R

Periods of UA / CONF :

NJP:

- 20070926 :       Article ( Disobey a superior commissioned officer , : To reside in government quarters while TAD )
         Article ( , )
          Article ( , : Told battalion commander he had resided in government quarters while TAD )
         Article ( , : $8081.50 in fraudulent travel reimbursments)
         Article 132 ( Fraud, : submited fraudulent travel claims)
         Awarded : Punitive letter of repremand Susp ended:

SCM: SPCM: CC:

Retention Warning Counseling :

- 19991210 :       For failure to pay just debts. Was delinquent in making monthly loan payments to Marine Federal Credit Union for a period of three months. Also, failed to be forthright with all information when questioned by superiors in chain of command.






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 . Secretary of the Navy Instruction 1920.6C (ADMINISTRATIVE SEPARATION OF OFFICERS) effective 15 December 2005 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 contends anxiety and Post - Traumatic Stress Disorder (PTSD) mitigate his misconduct.
2.       The Applicant contends he was improperly questioned by his commanding officer without being read his Article 31 rights.
3. The Applicant contends his discharge characterization is inequitable , because his misconduct was an isolated incident.
4. Post-service.
 5. The Applicant contends his characterization of service is inequitable , because he received poor legal counsel.

Decision

Date: 20 1 1 0616            Location: Washington D.C .         R epresentation :

By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall UNACCEPTABLE CONDUCT .
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 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 warning and for o f the Uniform Code of Military Justice (UCMJ): Article ( Disobey a superior commissioned officer , ), Article ( , ), Article ( , ), Article ( , ), and Article 132 ( Fraud , ). The Applicant requested to resign for the good of the service in lieu of administrative separation for cause on 12 Sept 2007. This request was subsequently approved by the Secretary of the Navy. The Applicant consulted with qualified counsel and acknowledged in his resignation request that he might receive an Under Other Than Honorable Conditions characterization of service and may expect to encounter substantial prejudice in civilian life in situations where the nature of service rendered in, or the character of separation from, the Ar med Forces may have a bearing.

: (Decisional) ( ) . The Applicant contends anxiety and PTSD mitigate his misconduct. The Applicant’s military medical record revealed no diagnosis of PTSD. The Applicant submitted documentation showing he was evaluated by a N avy psychiatrist on 7 Sept 2007. This evaluation refers to “… intermittent anxiety due to circumstances with occasional problematic panic attacks … . ” and rendered a diagnosis of depressive disorder not otherwise specified , as well as panic disorder. The Applicant’s separation physical on 16 Nov 2007 indicated he had suffered from two panic attacks that led to the mental health consult, and noted psychiatric treatment mentioned above along with current medications. Additionally, the separation physical noted the Applicant would require follow up treatment for this condition. The Applicant also submitted prescription medication documentation showing he was prescribed medications for the treatment of PTSD from a VA medical center in Jan 2011. After careful consideration of the record, evidence submitted by the Applicant, and in light of the numerous, serious , and protracted nature of his UCMJ violations, the NDRB determined the Applicant’s mental state at the time of his misconduct was not sufficiently disabling as to mitigate his misconduct. The NDRB found the Applicant’s characterization of service and narrative reason for separation to be appropriate as assigned.

: (Decisional) ( ) . The Applicant contends his discharge is improper , because he was improperly questioned by his commanding officer without being read his Article 31 rights. The Applicant had been ordered to reside in government quarters during the time of his misconduct. The Applicant’s statement to the NDRB indicates he was asked by his commanding officer on two separate occasions if he had stayed in a hotel without reading him his rights. The Applicant contends he answered truthfully without thinking about his answer and unintentionally incriminated himself. There is no evidence in the record to suggest the Applicant was under investigation at the time h is commanding officer questioned him. Additionally, t he NDRB found this conversation was in an official capacity regarding government business , and the Applicant had a n independent duty to res pond truthfully to his commanding officer’s inquiry regardless of whether he had been warned under Article 31 . The NDRB found the Applicant’s issue to be without merit. Relief denied.


: (Decisional) ( ) . The Applicant contends his discharge characterization is inequitable , because his misconduct was an isolated incident. Despite a service member’s prior record of service , certain serious offenses warrant separation from the in order to maintai n proper order and discipline. Violations such as those brought against the Applicant at NJP usually result in an unfavorable characterization of discharge or, at a maximum, a punitive discharge and possible confinement if adjudicated and awarded as part of a sentence by a special or general court-martial. The Applicant was found gui lty of several serious offenses at NJP . However, his command did not pursue a punitive discharge but opted instead for the more lenient administrative discharge. Considering his position as an officer of Marines, and the serious nature of the offenses, t he NDRB determined the Applicant’s command was generous in not vigorously pursuing a court-martial and a punitive discharge. Relief denied.

: (Decisional) ( ) . The Applicant requested the NDRB consider pos t - service conduct as a basis to gain a mo re thorough understanding of his performance and conduct during the period of service under review. The Applicant provided documentation of post-service employment. The Applicant ’ s post-service documentation efforts need to be more encompassing. The Applicant could have provided documentation to include letters of personal reference , certification of non-involvement with civil authorities, evidence of financial stability (home ownership/home rental history, credit card payments) , and documentation of community/church service. The Applicant should be aware 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 that in-service conduct was an aberration. Relief denied.

Issue 5 : (Decisional) ( ) . The Applicant contends his characterization of service is inequitable , because he received poor legal counsel. The record shows the Applicant had access to qualified legal counsel. The Applicant provided no documentation or evidence to suggest he expressed dissatisfaction with his counsel at the time, or that his counsel was otherwise found to be incompetent or negligent in execution of h er duties. Without compelling evidence to the contrary, the NDRB must presume regularity in the conduct of governmental affairs with regard to this issue. Relief denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and discharge process, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall UNACCEPTABLE CONDUCT .
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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