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USMC | DRB | 2011_Marine | MD1101562
Original file (MD1101562.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20110610
Characterization of Service Received: GENERAL (UNDER OTHER THAN HONORABLE)
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 - 20030824     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20030825     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20071012      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 18 D a y ( s )
Education Level:        AFQT: 42
MOS: 3531
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle , , , , ( 4 ) , ,

Periods of UA / CONF :

NJP:
- 20051107 :       Article (Failure to obey lawful order or regulation, 2 specifications )
         Specification 1: Purchased multiple beers and shots for an underage Marine
         Specification 2: Entering the room of a Marine of the opposite gender
         Article ( Disorderly conduct - d isturbing the peace)
         Awarded: , , Suspended:

- 20060825 :      Article ( Operating a motor vehicle under the influence of alcohol )
         Awarded : , , Susp ended:

SCM:
- 20070910 :       Art icle ( Wrongful u se, p ossession, etc of a c ontrolled s ubstance – Ecstasy as confirmed by positive urinalysis drug screening Naval Drug Lab ) [ Extracted from NAVMC 118, Page 11, Administrative Remarks (1070)]
         Sentence : Details not found in record [However, MCTFS documents a corresponding r eduction in r ank to E-1 and medical records document 24 day s c onfinement at CPEN brig.]

SPCM:    CC:      Retention Warning Counseling :

Administrative Corrections to the Applicant’s DD 214

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

         “ GENERAL ( UNDER HO NORABLE 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. 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 Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs , Part V, Para 502, Propriety and Para 503, Equity .

C. U.S. Code, Title 10, Section 1553 (d) (1) and (d) (2).


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

Applicant’s Issues

 Nondecisional issues : The Applicant seeks an upgrade in the characterization of h er service at discharge in order to facilitate vocational rehabilitation services benefits from the Department of Veterans Affairs (VA) .

Decisional Issues: The Applicant contends that h er misconduct of record was an unknown mistake and was the result of stress from depression , anxiety , and excessive alcohol use related to Post - Traumatic Stress Disorder (PTSD) , which warrants consideration as extenuating and mitigating factors to h er discharge and the characterization of service received.

Decision

 Date: 20 1 1 1116           Location: Washington D.C .        R epresentation :

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

Discussion

 The NDRB reviewed the Applicant’s personal statement; the Applicant contends that s he was suffering from PTSD. As such, in accordance with U.S. Code, Title 10, Section 1553 (d) (1), the 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 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. T he NDRB complete d a thorough review of the circumstances that led to the discharge , and the discharge process , to ensure that the discharge met the pertinent standards of equity and propriety. The Applicant entered military service at age 1 9 on a four - year enlistment with a guaranteed contract of Transportation Option. The Applicant’s enlistment record reflects entry into military service with waivers to enlistment and induction standards for pre-service drug use (marijuana x 21 uses ) and drug use in the D elayed E ntry P rogram (marijuana x 6 uses ) . During the enlistment process, the Applicant acknowledged h er complete understanding of the Marine Corps Policy Concerning the Illegal Use of Drugs - in writing - on 27 February 2003 . The Applicant completed two deployments in the Al-Anbar Province of Iraq (Fallujah Jul 04 to Jan 05 and Najaf Aug 06 to Jan 07) in direct support of combat operations in Operation IRAQI FREEDOM (OIF). The military service record further documents that s he received the Combat Action Ribbon for h er actions while engaged in combat operations against enemy forces .

The Applicant’s official record of service includes two nonjudicial punishments for violation s of the Uniform Code of Military Justice (UCMJ): Article 92 (Failure to o bey o rder or r egulation , 2 specifications) , Article 111 (Drunken o peration of a m otor v ehicle) , and Article 134 (Disorderly c onduct). Furthermore, the record of service documents a S ummary C ourt - M artial for violation of the UCMJ, Article 112(a) (Wrongful u se, p ossession, etc . of a c ontrolled s ubstance (Ecstasy) as confirmed by N aval D rug L ab positive urine sample test ing result ) . Based on the violation of Article 112(a) , service policy mandated processing for administrative separation , at a minimum . The Applicant’s service record is incomplete; there is no documentation of the administrative discharge package, to include the notification, proposed characterization of service, or the election of rights. The NDRB presumed regularity in the conduct of the government in that the Applicant was properly notified and afforded all rights as required by the Marine Corps Separation and Retirement Manual (M ARCORSEPMAN).

Nondecisional Issues: The Applicant seeks an upgrade in the characterization of her service at discharge in order to facilitate vocational rehabilitation services benefits from the VA. There is no requirement, or law, that grants re-characterization solely on the issue of facilitating access to VA educational or vocational rehabilitation benefits. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities. Regulations limit the NDRB’s review solely to a determination of the propriety and the equity of a discharge. As such, this issue does not serve to provide a foundation upon whi ch the NDRB can grant relief.

NDRB Board issue - The NDRB noted an administrative error on the Applicant’s DD Form 214 with regard to the character ization of service. The Applicant is requesting an upgrade in the characterization of her service to General (Under Honorable Conditions ) under the impression that she currently has an Under Other Than Honorable Conditions characterization of service. The DD Form 214 states the Applicant received a “GENERAL (UNDER OTHER THAN HONORABLE CONDITIONS) ” characterization of service; this is not an awardable characterization of service per the MARCORSEPMAN or Secretary of the Navy Instruction . As such, Block 24 of the DD Form 214 is in administrative error . Due to the absence of an administrative discharge package in the Applicant’s Official Service Record, there is no source document to determine what the proper and directed characterization of service at separation was to be . The NDRB reviewed the Applicant’s entire service record and medical record in this case to make a determination. The Applicant’s service record documents two combat deployments to Iraq. The Applicant received the Combat Action Ribbon for her individual actions when engaged by enemy force actions. The medical record further documents engagement by Improvised Explosive Devices. The r ecord of service further documents a diagnosis of alcohol dependence ( e xcessive and chronic use, post - deployment to Iraq) coupled with an in-service diagnosis of PTSD ( c hronic ) , which was diagnosed b y an appropriately credentialed mental health care provider ( psychologist). The Applicant self-referred for alcohol treatment two months prior to her expiration of active service date; she was immediately referred to a 30-day inpatient treatment program with the diagnosis of alcohol dependency being affirmed by inpatient treatment facility staff.

After a thorough review of the records, supporting documents, facts, and circumstances unique to this case , to include the timing of the discharge action, the c hronic PTSD, and the excessive alcohol use to mask symptoms , the NDRB determined that the characterization of service at discharge , which was warranted and was appropriate, was General (Under Hon orable Conditions) . The NDRB will recommend to the Commandant of the Marine Corps that the DD Form 214 be administratively corrected.

(Decisional issue) ( ) FURTHER . The Applicant contends that her misconduct of record was an unknown mi stake and was the result of stress from depression, anxiety, and excessive alcohol use related to PTSD . 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. Due to the administrative errors on the Applicant’s DD Form 214, as noted in preceding paragraphs, the NDRB expanded the Applicant’s request for a review of her discharge characterization to include a request that the NDRB consider an upgrade to H onorable conditions.

Despite a service member’s prior record of service, to include combat service, certain serious offenses warrant separation from the Naval Service in order to maintain good order and discipline. Violation of Article 112(a) is one such offense, requiring mandatory processing for administrative separation, regardless of grade, performance, service record, or time in service. Moreover, this action usually results in an unfavorable characterization of service at discharge or, at a maximum, a punitive discharge with the possibility of confinement, if adjudicated, and awarded, as part of a sentence by a S pecial or G eneral C ourt- M artial. The Applicant’s record of service further documents two previous NJPs prior to the S ummary C ourt -M artial for violation of Article 112(a). Characterization of service at discharge is the recognition of a Marine’s performance and conduct during a period of enlistment and is not necessarily dependent upon the narrative reason for separation. When the quality of a member’s service has met the standards of accepted conduct and performance of duty for military personnel, it is appropriate to characterize that service under Honorable conditions. 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. Given the facts of the record, the information provided by the Applicant, and the Applicant’s combat service, the NDRB determined that the Applicant’s conduct was honest and faithful but that significant negative aspect of the member’s conduct did outweigh the overall positive aspects of her record. As such, given the facts and circumstances unique to this case, the NDRB determined that no further relief beyond the administrative relief already provided was warranted. The NDRB voted 5-0 that an upgrade of the Applicant’s characterization of service beyond General (Under Honorable Conditions) was not warranted; moreover, by a vote of 5-0, the NDRB determined that no change to the narrative reason for separation wa s warranted. Relief denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, service record entries, and the discharge process, the NDRB determined that the discharge was proper and equitable once administratively corrected. Therefore, the awarded characterization of service shall GENERAL (UNDER HONORABLE CONDITIONS) 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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