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USMC | DRB | 2011_Marine | MD1101695
Original file (MD1101695.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20110629
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)       20060519 - 20060915     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20060916     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20100915      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 00 D a y ( s )
Education Level:        AFQT: 38
MOS: 0341
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle (w/1 bronze service star) LoA

Periods of CONF :

NJP:

- 20070803 :       Article (Failure to obey order or regulation, 2 specifications )
         Specification 1: Admit to consuming alcohol to the Company 1stSgt A_, on 20070729, while under 21
         Specification 2: Admit to disobeying a direct order given by his Commanding Officer, not to consume alcohol and operate a motor vehicle on 20070729.
         Awarded : Susp ended:

- 20090309 :       Article (Failure to obey order and regulation, received a speeding ticket for going 49 mph in a 35 mph zone , driving privileges were revoked for 2 years on 20070729)
         Awarded : Susp ended:

- 20090403 :       Article (Failure to obey order and regulation, underage drinking on 20090329 )
         Awarded : RESTR Susp ended:

- 20100614 :       Article 86 ( Absent from unit 20100604 - 20100607, 4 days)
         Article 9 0 ( W illfully disobey a lawful order, to immediately return to the barracks on 20100604)
         Awarded : FOP Susp ended: RESTR EPD 1 day

- 20100813 :       Article 86 ( Unauthorized absence 0600, 20100809 until 1700, 20100812 , 4 days )
         Awarded : RESTR EPD Susp ended:

SCM:

- 20100825 :       Art icle (Found drunk while on restriction by a Staff Non-Commissioned Officer , 20100817)
         Sentence :

SPCM:    CC:

Retention Warning Counseling :

- 20070803 :       For recent NJP for violation of A rticle 92 of the UCMJ held on 20070803. Drinking under age and disobeying a direct order given by the Commanding Officer.

- 20081208 :       For your lack of responsibility and failure to follow simple instructions, you were removed from the 1 st Battalion, 9 th Marine rifle range that was to be conducted at Stone Bay Rifle Range on 20081208, for los ing your military ID card.

- 20090309:      For recent NJP for violation of Article 92 of the UCMJ held on same date

 - 20100618 :       For unauthorized absence a nd failure to obey a Staff Non-C ommissioned Officer.

Administrative Corrections to the Applicant’s DD 214

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

          “ (4) 20100604-20100607; (4) 20100809-201008112 ”
        
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. Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 1 September 2001 until Present, Paragraph 1005, DISCHARGE FOR EXPIRATION OF ENLISTMENT OR FULFILLMENT OF SERVICE OBLIGATION .
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 the characterization of his service at discharge in order to facilitate access to Department of Veterans Affairs educational benefits programs.

2.       Decisional issues: The Applicant contends that his misconduct was post-service in Iraq and that his diagnosis of Post-Traumatic Stress Disorder (PTSD) is mitigation for his misconduct .

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

 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 discharge if such change is warranted. In reviewing discharges, the Board 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 NDRB completed a thorough review of the circumstances that led to his discharge, and the discharge process, to ensure the discharge met the pertinent standards of both equity and propriety. The Applicant’s service record indicates he entered military service at age 18 on a four-year e nlistment contract with a guarantee of Infantry Option as his occupational specialty . The Applicant’s enlistment record further documents entry into the service with a waiver for pre-service drug use (marijuana). He acknowledged his complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 11 May 2006 . The Applicant’s record of military service included four paragraph 6105 retention - counseling warnings , five nonjudicial punishments (NJPs) for violations o f the Uniform Code of Military Justice (UCMJ) , and one Summary Court - Martial for violations o f the UCMJ . The Applicant’s violations include: Article 86 (Absent w ithout l eave , 2 specifications ) , Article 90 (Willfully disobeying a superior commissioned officer, 1 specification) , and Article 92 (Failure to obey order or regulation, 5 specifications). The Applicant’s record of service further documents that he is a combat veteran, having served in direct combat operations as an Infantryman in support of Operation IRAQI FREEDOM from 15 March to 15 October 200 8 in Ar-Ramadi, Al-Anbar Province , Iraq .

Nondecisional Issue: The Applicant seeks an upgrade in the characterization of his service at discharge General (Under Honorable Conditions) to Honorable in order to facilitate access to VA educational benefits. There is no requirement, or law, that grants re-characterization solely on the issue of obtaining veterans health and educational 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 proprie ty and the equity of a discharge; a s such, this issue does not serve to provide a foundation upon which the NDRB can grant relief.

Decisional Issue: ( ) . The Applicant contends that his misconduct was post - service in Iraq and that his diagnosis of PTSD is mitigation for his misconduct. In reviewing discharges, the Board 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 submitted no evide nce to rebut this presumption.

The Applicant’s record of service included five nonjudicial punishments for various violations of the UCMJ and a Summary Court - Martial . The Applicant’s medical record further documents that he was diagnosed, in-service, with PTSD and was assigned to a 6 - month period of Limited Duty in March 2009 for the same. The diagnos i s of PTSD was re-affirmed and a second period of 6 months of limited duty was approved in August 2009. Due to the limited - duty assignment, the Applicant was unable to deploy with his Battalion and was assigned to the Remain Behind Element.

In considering the Applicant’s diagnosis of PTSD as mitigation to his misconduct, the NDRB considered that the Applicant ha d demonstrated misconduct prior to his combat service in Iraq. T hough the Applicant did have continued misconduct after his combat service, the record clearly reflects misconduct that could warrant an involuntary discharge before the deployment. In accordance with chapter 6 of the Marine Corps Separation and Retirement Manual (MARCORSEPMAN), the Applicant ’ s record of service documents an established Pattern of Misconduct (paragraph 6210.3) and the Commission of a Serious Offense (paragraph 6210.6). However, the Applicant’s command did not pursue punitive punishment and discharge through trial by special or general court - martial for the chronic and deliberate misconduct n or did the c ommand pursue involuntary administrative separation , which would have warranted a characterization of service of Under Other Than Honorable Conditions. I nstead, the Applicant was retained and afforded the opportunity to complete his obligated service contract.

In accordance with paragraph 1004 of the MARCORSEPMAN , characterization of service is the recognition of the quality of a Marine’s performance and conduct. Most Marines serve honorably; in fairness to those Marines, commanders and separation authorities are tasked to ensure that Marines receive no higher characterization than is due. An Honorable characterization of service is the highest quality of characterization and is appropriate when the quality of the Marine’s service has met the standards of acceptable conduct and performance of duty for military personnel. 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 o f the member’s service record.

In accordance with Paragraph 1004 of the MARCORSEPMAN, upon expiration of an active duty service enlistment, the characterization of service received will be H onorable for those Marines who have average P roficiency mark s of 3.0 or higher and average C onduct marks of 4.0 or higher. Failure of a Marine to achieve either of these standards is evidence of significant negative aspects, outweighing all but the most meritorious military records. Marines who do not achieve these standards should not receive an H onorable discharge. In reviewing the Applicant’s official service record, the NDRB noted that the Applicant’s average Proficiency and Conduct marks in service were 3.6 and 3.5 , respectively . Based on these marks, as directed by the M ARCORSEPMAN , the c ommand was obligated to award the Applicant with a General (Under Honorable Conditions) discharge.

Although the command could have pursued either administrative or punitive action to address the A pplicant’s misconduct in accordance with the MARCORSEPMAN, it did not. In doing so, the c ommand allowed the Applicant to be separated upon completion of his active obligated service with a characterization of service as warranted by his record of service: General (Under Honorable Conditions). The NDRB determined that the Applicant’s PTSD was a mitigating factor for his misconduct of record and that it was considered by the command in their decision to not pursue punitive or administrative discharge actions that would have resulted in a less than honorable discharge characterization. The NDRB further determined that the characterization of service received at discharge was warranted, was equitable, and was and is consistent with that received by others with similar circumstances at the completion of their required active service. Therefore, after reviewing the Applicant’s issues, supporting documents and the evidence of record, the NDRB discerned no impropriety or inequity with the Applicant’s separation and that the characterization of service, as issued, was warranted. Accordingly, relief is 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 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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