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USMC | DRB | 2011_Marine | MD1101479
Original file (MD1101479.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20110519
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)       20010926 - 20020908     Active:            20020909 - 20051013

Period of Service Under Review:
Date of Current Enlistment: 20051014     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20100816      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 7 D a y ( s )
Education Level:        AFQT: 74
MOS: 0311
Proficiency/Conduct M arks (# of occasions): ( 18 ) / ( 18 )        Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle (5) Pistol (Iraq) (4) (2) (3) (Bahrain) CoA (2)

Periods of CONF :

NJP:

- 20090416 :      Article (UA , 2 specifications )
         Specification 1: Absent himself from his place of duty at which he was required to be, to wit Remedial Physical Fitness and Body Composition Program physical training, held at 1130 each da y
         Specification 2: On or about 20090330 without authority absent himself from his place of duty at which he was required to be, to wit Morning accountability formation held at 0715 on 20090330, and did remain absent until he surrendered to military authority at 0800 20090330
         Article (Fail to obey the same by not partaking in the remedial training)
         Awarded: Suspended:

SCM:     SPCM:    CC:

Retention Warning Counseling :

- 20071201 :       For violating Article 86 on 20071101, 20071115, and 20071128. You failed to be at your appropriate place of duty on time
- 20080427 :       For lack of judgment and initiative for failure to settle debt with Liberty Park AAFB property management

- 20090918 :       For physical shortcomings and lack of initiative for making no progress on the Battalion BCP program

- 20100609 :       For absence without leave on 20100505 you without authority absent yourself form the place of duty at which you were required to be, to wit morning accountability formation, held at 0730 each day located at CBIRF you did not report for duty until 1900 on 20100505, after you were retrieved from the Bowie , MD fire station by your leadership

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 desires to change his re-enlistment code.
2.       The Applicant contends he should have been medically retired.
 3.       The Applicant contends his pattern of misconduct was due to being late for Body Composition Program (BCP) formations as a result of being at appointments to treat his Post-Traumatic Stress Disorder (PTSD).
Decision

Date : 2011 1116             Location: Washington D.C .        R epresentation :

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

Discussion

 In 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, 2 specifications) and Article ( , ). Based on the offenses committed by the Applicant, command administratively processed for separation. When notified of administrative separatio n processing, the Applicant exercis ed rights to consult with a qualified counsel and request an administrative board. The Applicant waived his right to submit a written statement. The administrative board voted 3-0 to separate with an Under Other Than Honorable Conditions characterization of service. The S eparation A uthority, after considering all facts and circumstances, including the Applicant’s PTSD diagnosis, chose to separate the Applicant with a General (Under Honorable Conditions) characterization of service.

: (Nondecisional) The Applicant desires to change his re-enlistment 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 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.
: (Decisional) ( ) . The Applicant contends he should have been medically retired. The Applicant was charged with indecent exposure following the Physical Evaluation Board (PEB) determination in his case. This misconduct does not appear to have been adjudicated at NJP or court-martial. However, the Applicant appeared before an A dministrative S eparation B oard , which heard all evidence and circumstances surrounding his separation. The board voted 3-0 that the evidence supported all misconduct and 3-0 to separate with an Under Other Than Honorable Conditions characterization of service . 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 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 B oard for Correction of Naval Records can grant this type of narrative reason change. After carefully

examining the Applicant’s case, the NDRB determined there was no inequity or impropriety in the Applicant’s separation proceedings. Further, the NDRB found the Applicant’s command carefully considered his PTSD diagnosis as well as the report of the division psychiatrist. In light of the nature of the misconduct, and the fact that his command considered his PTSD diagnosis in determining the characterization of service, the NDRB determined no change is warranted to the Applicant’s characterization of service or narrative reason f or separation. Relief denied.

: (Decisional) ( ) . The Applicant contends his pattern of misconduct was due to being late for BCP formations as a result of being at appointments to treat his PTSD. Regardless of why the Applicant may have been late for formations, it is clear that the Applicant exhibited a Pattern of Misconduct as defined in the Marine Corps Separation and Retirement Manual. Over the course of his current enlistment, he was found guilty of violating Articles 86 and 92 of the UCMJ and received four retention counseling warnings. There is nothing in the record to show that the Applicant was in capable of following Marine Corps rules and regulations or anything to indicate that he should not be held accountable for his actions. He was properly notified of proceedings to administratively separate him on 11 January 2010. On 14 January 2010, he acknowledged these proceedings and requested a hearing before an Administrative Separation Board. This board subsequently recommended separation with an Under Other Than Honorable Conditions characterization. The Separation Authority, however, took his PTSD diagnosis and service into consideration and ordered the Applicant be discharged with a General (Under Honorable Conditions) characterization. The NDRB discerned no impropriety or inequity in the discharge. 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 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, 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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