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USMC | DRB | 2011_Marine | MD1101541
Original file (MD1101541.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20110607
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)       20030228 - 20030413     Active:            20030414 - 20070418 HON

Period of Service Under Review:
Date of Current Enlistment: 20070419     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20091112      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 24 D a y ( s )
Education Level:        AFQT: 65
MOS: 0431
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle , (2) , (W/1 CAMPAIGN STAR) , , , , CoA

Periods of CONF :

NJP:

- 20081015 :      Article ( Absence without leave; specifically, unauthorized absence by failure to go to appointed place of duty – missed appointment with CSACC at 0730, 20080910)
         Article (Failure to obey lawful order or regulation – to be at appointment on time and not to consume alcohol prior to his appointment and was refused by CSACC personnel due to his unofficial blowing of .034% BAC on a breathalyzer)
         Awarded: Suspended:

- 20090218 :      Article (Failure to obey order or regulation ; failed to provided directed minimum support to wife)
         Awarded: Suspended:

SCM:     SPCM:    CC: NFIR
CC ARREST :

- 20080901 :       Charge : Driving under the influence [Extracted from Commanding Officer’s letter dated 20090515.]

- 20081116 :       Charge: Driving under the influence [Extracted from Commanding Officer’s letter dated 20090515.]

Retention Warning Counseling :

- 20061220:      For violati on of Article 86 on 13 Dec 06.




- 20080804 :       For unsatisfactory performance of duties, specifically the inability to complete basic daily administrative tasking. You have been counseled on several occasions concerning the tardiness and accuracy of completing the daily Airflow Tracker and UMCC Mission Logs up to this point all additional guidance from your chain of command has been ignored in regards to this matter. As of today you are being relocated within the G-4 for not being able to perform to the level required of an NCO in your MOS until further reassessment of your MOS skill level can be completed.

- 20081016 :       For violation of Articles 86 and 92, specifically, unauthorized absence which resulted in your NJP on 20081015. SNM was awarded and 14 days restriction to place of mess, billet, duty, religious services and most direct route to and from and 14 days extra primary duty.

- 20081118 :       For my demonstrated shortfalls in the military attributes of leadership, judgment, reliability, obedience and self-discipline as evidenced by my being disrespectful to a Senior Non Commissioned Officer. On 20081107 you were spotted at the Haunted Head Saloon while on liberty. You were approached by a Marine in your section (Sgt N_) who was familiar with the standing order that you not to consume alcohol while receiving alcohol related treatment. During the conversation you became disrespectful and unprofessional with the Sergeant of Marines. Your actions were unacceptable for a Marine and are prejudicial to good order and discipline and will not be tolerated.

- 20090209 :       For my off-base arrest for driving under the influence of alcohol or other alcohol-related driving offense on 20080901. I understand the significant material and social costs of DUI accidents and deaths to our Nation. I have been counseled that Marines are held to a higher standard, and that my behavior was inconsistent with one who was sworn to defend that Nation. Beyond the penalties assessed by a civilian court, I understand that I have damaged my personal reputation and the reputation of the Marine Corps. If in a leadership position, I understand that this incident has compromised my leadership credibility. I have been counseled that my violation of Marine Corps standards and the trust placed in me reflect in unfavorable consideration for my promotion for up to 3 months from the date of my conviction. Conduct of this type is unacceptable and will not be tolerated.

- 20090209 :       For off-base arrest for driving under the influence of alcohol or other alcohol-related driving offense on 20081116. I understand the significant material and social costs of DUI accidents and deaths to our Nation. I have been counseled that Marines are held to a higher standard, and that my behavior was inconsistent with one who was sworn to defend that Nation. Beyond the penalties assessed by a civilian court, I understand that I have damaged my personal reputation and the reputation of the Marine Corps. If in a leadership position, I understand that this incident has compromised my leadership credibility. I have been counseled that my violation of Marine Corps standards and the trust place d in m e reflect poorly on my leadership ability, and may result in unfavorable consideration for promotion for up to 3 months from the date of my conviction. Conduct of this type is unacceptable and will not be tolerated.

- 20091105 :       For unsatisfactory performance while assigned to the Marine Corps Body Composition Program. Due to your insufficient effort, you have not met your weight/body composition reductions goals of losing the prescribed 3 to 8 pounds per month and or 1 percent body fat per month for a period of six months. This is an indication of lack of discipline and initiative, traits the Marine Corps is founded upon.

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:
         
“ 2003 04 14 ”
         “ 06 06 29 ”
         “ CONTINUOUS HONORABLE ACTIVE SERVICE FROM
030414 UNTIL 070418 ”
         “ UNDER OTHER THAN HONORABLE CONDITIONS ”

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.       Nondecisional issues: The Applicant seeks an upgrade in his characterization of service at discharge in order to facilitate employment opportunities.

2.       Decisional issues: The Applicant contends that his discharge characterization of service was inequitable and does not reflect his service and combat service to his nation. The Applicant further contends that his discharge was inequitable in that mitigating factors related to personal stressors at the time of his misconduct were not considered. The Applicant contends that his combat service and resulting Post - Traumatic Stress Disorder (PTSD) symptoms were contributing factors to his misconduct and were not considered in mitigation.

Decision

 Date: 20 1 1 0915           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 10, Section 1553 (d) (1), the NDRB 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 achi eve 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 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 three decisional issues to the NDRB. The NDRB completed a thorough review of the circumstances that led to the Applicant’s discharge, and the discharge process, to ensure the discharge met the pertinent stan dards of equity and propriety. The Applicant entered active duty military service at age 23 on a four-year contract with a guarantee of Logistics training. He entered the service with waiver to enlistment conditions or standards for minor adjudicated traffic offenses and successfully completed that enlistment period honorably; he re-enlisted immediately for a second period of enlistment obligation on 19 April 2007 . The Applicant’s record of military service documents that he is a combat veteran , deploying with I MEF for one year to support combat operations in the Al-Anbar province of Iraq in support of Operation IRAQI FREEDOM from Feb 200 6 to Feb 2007 . The Applicant’s record of service documents one retention-counseling warning during his previous enlistment period and six retention-counseling warnings in his current enlistment. Moreover, his record of service during his current enlistment also includes two nonjudicial punishment s for violations o f the Uniform Code of Military Justice (UCMJ) : Article 86 (Absence without leave - failure to go to appointed place of duty) and Article 92 (Failure to obey order or regulation , 2 specifications ) . Additionally, the A pplicant was subject to two arrests and convictions by civilian law enforcement for Driving Under the Influence of Alcoh ol (BAC 0.13% and 0.16%).

Based on the established pattern of misconduct and the individual offenses committed by the Applicant, his command recommended that he be processed administratively for separation. When notified of administrative separation processing using the administrative board notification procedure, the Applicant elected to consult with a qualified legal counsel and exercised his right to request a hearing before an administrative discharge board. The Applicant was advised in writing that the least favorable characterization of service he could receive was Under Other Than Honorable Conditions and that characterization was what the Commander was recommending. In accordance with the Applicant’s election of rights, a n administrative discharge board heard the Applicant’s case regarding his administrative separation: by a vote of 3-0, the B oard found a preponderance of the evidence supported the finding that misconduct had occurred; by a vote of 3-0, the B oard recommended separation without suspension; and by a vote of 3-0, the board recommended the Applicant’s characterization of service be Under Other Than Honorable Conditions. The Separation A uthority reviewed the findings and concurred with the b oard’s recommendations; on 12 November 2009 , the Applicant was discharged and assigned a re-entry code of RE-4 (not recommended for reenlistment).

(Non-decisional Issue) The Applicant contends that his discharge characterization is inequitable in that it is preventing him from being eligible for better employment opportunities. There is no requirement, or law, that grants re-characterization solely on the issue of facilitating employment opportunities. As such, this issue does not serve to provide a foundation upon which the NDRB can grant relief. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing educational opportunities or Veterans Affairs benefits. Regulations limit the NDRB’s review solely to a determination of the propriety and the equity of a discharge.

(Decisional Issues) (Propriety/ ) . The Applicant contends that his discharge as issued was inequitable for the following reasons: (1) T he Applicant contends that his discharge characterization of service was inequitable and does not reflect his overall service and his combat service to his nation; (2) the Applicant further contends that his discharge was inequitable in that mitigating factors related to personal stressors at the time of his misconduct were not considered; and (3) the Applicant contends that his combat service and resulting Post Traumatic Stress Disorder symptoms were contributing factors to his misconduct and were not considered in mitigation. The NDRB reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis. If such a review reveals an impropriety or inequity, relief is in order. Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with the standards of di scipline of the Naval Service.

Propriety - The NDRB completed a thorough review of the Applicant’s issues and the discharge process and determined that the discharge met the pertinent standard of propriety in accordance with paragraph 6210.3 of the Marine Corps Separation and Retirement Manual (MARCORSEPMAN) - Misconduct (Pattern of Misconduct). The Applicant’s record reflected misconduct ( NJP dated 20081015, NJP dated 200 90218, Civilian arrest and convictions dated Sept 08 and Nov 08 ) and multiple violations of previous retention-counseling warnings. These actions established a pattern of misconduct that warranted consideration for administrative separation. The Applicant’s service record reflects that he was advised properly on the separation recommendation by his chain of command; he was afforded the opportunity to exercise his rights and acknowledged all such in writing , to include presenting his case for retention to a board of members . The Separation Authority reviewed the evidence of record and the administrative discharge board findings and concurred with the determination that a preponderance of the evidence satisfied the requirements as outlined in the applicable regulation; accordingly, he directed the Applicant be discharged. The NDRB determined that the evidence of record did establish the basis for discharge and that the actions were proper. Accordingly, relief based on propriety is not warranted.

 Decisional Issue 1 - (Equity) T he Applicant contends that his discharge characterization of service was inequitable and does not reflect his overall service and his combat service to his nation. The Applicant’s current period of enlistment included two non-judicial punishment s for misconduct ( failure to go to appointed places of duty and failure to abide by orders and directives ). These two violations of the UCMJ, coupled with his violation of the 6 retention-counseling warnings he had received, warranted the Commander’s decision to seek discharge. Moreover, c ertain serious offenses warrant separation from the service to maintain the good order and discipline of the service. Violation of Article 92 is one such offense , which usually results 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 command did not pursue a punitive discharge but opted instead for the more lenient non - judicial punishments and administrative discharge . Additionally, the two civilian arrests and convictions for driving under the influence of alcohol were serious offenses that, by themselves, warranted separation for Misconduct due to the c ommission of a s erious o ffense.

The Applicant is a combat veteran; that service is reflected in the Honorable characterization of his service that he received during his first enlistment period. However, each period of enlistment is an independent obligation and characterization is determined for that specific period. The characterization of service is determined by the quality of the member’s total performance of duty and conduct during the current enlistment, including the reason for separation. Other considerations shall be given to the member’s length of service, grade, aptitude, and physical and mental condition. An Honorable 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 General (Under Honorable Conditions) 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 outweighed the positive aspects of the member’s service record. However, an Under Other Than Honorable Conditions discharge 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. Based on the Applicant’s record of service, the NDRB determined the Applicant engaged in conduct involving one or more acts or omissions that constituted a significant departure from the conduct expected of members of the Naval Service, and the awarded characterization of service was warranted. Relief denied.


Decisional Issue 2 - (Equity) the Applicant contends that his discharge was inequitable in that mitigating factors related to personal stressors at the time of his misconduct were not considered in his discharge process. The Applicant contends his disciplinary problems were the result of stress caused by marital and financial issues . The NDRB recognizes that serving in the military is challenging. Most service members, however, serve honorably and therefore earn their honorable discharges. In fairness to those service members, commanders and separation authorities are obligated to ensure that undeserving Marines receive no higher characterization than is due. There is no evidence in the record, nor did the Applicant provide any documentation, to indicate he attempted to u s e the numerous services available for service members who are undergo ing 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 determined the Applicant’s personal problems were not mitigating factors in his misconduct. Relief denied.
Decisional Issue 3 - (Equity) the Applicant contends that his combat service and resulting PTSD symptoms were contributing factors to his misconduct that were not considered in mitigation . The government enjoys a presumption of regularity in the conduct of its affairs ; t he Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue. The NDRB found no medical diagnosis in the record to support the Applicant ’ s claim , nor did the Applicant produce any medical diagnosis by competent medical authority to support his claim. While admitted to an inpatient alcohol rehabilitation treatment program , the Applicant received psychiatric evaluation and counseling, which did consider possible symptoms of PTSD; however, no diagnosis of the Applicant suffering from PTSD was made. The Applicant’s issues were attributed directly to his personal s tressors (excessive financial debt, spousal infidelity, geographic separation, pending divorce, and pending military charges and discharge). While t he Applicant may feel that PTSD symptoms were t he underlying cause s of his misconduct, the record clearly reflects willful misconduct that demonstrated he was unfit for further service. Relief denied.

T he Applicant should be aware that the VA has announced special VA enrollment access for PTSD and mental health treatment to combat veterans discharged under other than dishonorable conditions (i.e. , all discharges other than a Bad Conduct or Dishonorable D ischarge as issued by a Special or General Court - Martial). Effective Jan. 28, 2008, combat veterans discharged from active duty on or after Jan. 28, 2003, are eligible for combat veteran enhanced eligibility and enrollment placement into Priority Group 6 (unless eligible for higher enrollment Priority Group placement) for 5 years post discharge. Additionally, the VA determines the eligibility for enrollment in its programs independent of the Applicant’s characterization of service as determined by the Marine Corps. The Applicant, as a combat veteran, is encouraged to contact his local VA affairs representative for more information and may request a compensation and pension (C&P) exam to establish his service connected eligibility for possible treatment of PTSD . Alternately, he may call 1-877-222-8387 or visit the following website for more information: http://www4.va.gov/healtheligibility/Library/pubs/CombatVet/CombatVet.pdf .
Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, medical and service record entries, police reports, and the discharge process, the NDRB 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 his 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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