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USMC | DRB | 2011_Marine | MD1101699
Original file (MD1101699.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20110705
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)       20060329 - 20060904     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20060905     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20100901      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 27 D a y ( s )
Education Level:        AFQT: 70
MOS: 0352
Proficiency/Conduct M arks (# of occasions): /          Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle (2) ( 3 ) (2)

Periods of UA / CONF :

NJP:     SCM:     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:

         “ G KQ1 ”

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. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 120.

D. 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

 1.       Nondecisional issues : (1) The A pplicant seeks a change in his Re-Code (RE-4B); he was separated for commission of a serious offense, not a drug - related reason for discharge. (2) The A pplicant seeks an upgrade in his characterization of service at discharge in order to be eligible for Department of Veterans Affairs (VA) benefits.

2.       Decisional issues : The Applicant contends that he was discharged for a minor civilian conviction , which is currently under appeal , and that his overall service was meritorious and warranted an H onorable characterization at discharge. The Applicant seeks an unspecified narrative reason change to correspond with the proposed change in his discharge characterization. The Applicant contends that his Post - Traumatic Stress Disorder (PTSD) treatment and medications mitigate his misconduct o f record and his wartime service and resulting PTSD should be considered in the determination of his characterization of service.

Decision

Date: 20 1 1 1019            Location: Washington D.C .         R epresentation :

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

Discussion

 I n accordance with U.S. Code, Title 10, Section 1553 (d) (1), the B oard 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 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 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.

The Applicant entered military service at age 1 9 with out waiver to enlistment and induction standards on a four - year enlist ment with a guaranteed contract of Infantry Option. The Applicant completed 3 years , 11 months , and 27 days of his four-year enlistment obligation. The military service record further documents that he is a combat veteran, having completed two deploy ments as an Infantryman in the Al-Anbar Province of Iraq in support of Operation IRAQI FREEDOM (OIF).

On 02 Nov 2007, the Applicant was involved in an incident with a 12 year old girl aboard base housing that required local civilian police involvement. In July 2009, the Applicant was criminally convicted of annoying or molestation of a minor in civilian court; the Uniform Code of Military Justice (UCMJ) nearest equivalent to these charges would be violation of Article 120 ( Indecent liberty with a child, Indecent Act, or Wrongful sexual contact with a child) . Violation of this article warrants confinement for up to a maximum of seven years, depending on the aggravating circumstances involved, and a Bad Conduct Discharge or Dishonorable Discharge if adjudged at trial by special or general court - martial. On 15 September 2009, the Applicant was notified of his command’s intent to separate him from the service administratively for Misconduct (Commission of a Serious Offense) pursuant to paragraph 6210.6 of the Marine Corps Separation and Retirement Manual (MARCORSEPMAN). The Applicant was further notified that the least favorable characterization of service possible was under other than honorable conditions and that characterization of service is what the commander was recommending he receive. T he Applicant acknowledged the recommendation for separation on 16 September 2009; he elected to exercise his right to request an A dministrative Separation B oard (ASB) be held and was represented by a qualified military defense counsel in preparation for, and during, the board. On 0 8 February 2010 , the Commanding Officer appointed the ASB and , on 09 April 20 10, the boar d was convened to hear the case.


By unanimous vote, the board found that a preponderance of the evidence presented proved all the acts or omissions alleged in the notification letter; specifically , that the Applicant had committed misconduct due to the commission of a serious offense. The A SB recommended the Applicant be separated with a characterization of service of Under Other Than Honorable Conditions ; however, the ASB recommended that the separation be suspended. On 05 August, t he Commander endorsed the findings of the b oard but recommended that the separation not be suspended and that the A pplicant be discharged from the service in accordance with the Board’s finding of misconduct and the characterization of service as determined. The Separation Authority approved the ASB’s findings and recommendations but concurred with the C ommander that the A pplicant’s separation not be suspended. On 31 August 2010, he directed that the Applicant be separated from the Marine Corps by reason of M isconduct - C ommission of a S erious O ffense , pursuant to paragraph 6210.6 of the MARCORSE P MAN .

Nondecisional Issues : (1) The A pplicant seeks a change in his separation code and the R eentry C ode (RE-4B) as h e was separated for commission of a serious offense, not a drug - related reason as the codes refer . (2) The A pplicant seeks an upgrade in his characterization of service at discharge in order to be eligible for VA benefits.

The Applicant seeks a change in the separation code; this was an administrative error by the S eparation A uthority. The Applicant was discharged for Misconduct (Commission of a Serious Offense). The correct separation code for this discharge is GKQ1, not HKK1 (Misconduct - D rug A buse). The NDRB has recommended to the Commandant of the Marine Corps that the appropriate administrative correction be made to the Applicant’s DD Form 214 (Block 26 - Separation Code). Additionally, t he NDRB is not authorized to change the reentry code as requested. The Applicant must petition the Board for Correction of Naval Records (BCNR) using DD Form149. When requesting this change, the Applicant should provide as much documentation regarding the justification for change as possible. The BCNR’s a ddress is: Board for Correction of Naval Records, 2 Navy Annex, Washington, DC 20370-5100. Further information can be found online at http://www.donhq.navy.mil/bcnr/bcnr.htm .

There is no requirement, or law, that grants re-characterization of a discharge solely for obtaining v eterans benefits ; t he U.S. Department of Veterans Affairs determines eligibility for post-service benefits, not the Naval Discharge Review Board. As such, th is issue do es not serve to provide a foundation upon which the NDRB can grant relief.
The NDRB noted that the Applicant’s DD Form 293 included an inference that the Applicant has mental health concerns related to PTSD. The 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. , any discharge better than a Bad Conduct Discharge or a Dishonorable Discharge). 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. The Applicant, as a combat veteran, is encouraged to contact his local VA affairs representative for more information and may request a review of his service and determination of benefits via a Compensation and Pension Exam from the VA. 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 .
Decisional Issue (Propriety/ ) . The Applicant contends that he was discharged for a minor civilian conviction, which is currently under appeal, and that his overall service was meritorious and warrante d an H onorable characterization at discharge. Additionally, the Applicant seeks an unspecified narrative reason change to correspond with the proposed change in his discharge characterization. The Applicant contends that his wartime service and resulting PTSD mitigate his misconduct o f record. Whenever a Marine is involved in misconduct, as described in paragraph 6210.6 of the MARCORSEPMAN, commanders are directed to process the Marine for separation, unless rehabilitation and retention are warranted. The characterization of service for Misconduct normally shall be under other than honorable conditions, but characterization as general (under honorable conditions) may be warranted in some circumstances. Moreover, despite a Marine’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline. The charges specified against the Applicant in civilian court were serious offenses per the UCMJ: punishable by a punitive discharge and confinement, if adjudicated by a special or general court-martial. Specific to the Applicant’s issue, paragraph 6210.6 of the MARCORSEPMAN provides a basis for separation of a Marine by the commission of a serious military or civilian offense under the following circumstances: (1) when the specific circumstances of the offense warrant separation; and, (2) a punitive discharge would be authorized for the same or a closely related offense under the UCMJ. This provision of the MARCORSEPMAN further specifies that a military or civilian conviction is not required for discharge . The Applicant ’ s command opted to allow the civilian prosecution to complete its action and then , pursuant to the finding of guilt, sought administrative discharge proce dures to address the Applicant’s civilian conviction while in s ervice .

The ASB determined that a preponderance of the evidence presented (civilian conviction) proved the acts or omissions alleged in the notification letter. Since the charges and specifications alleged against the Applicant warranted a punitive discharge, the recommendation and process for discharge by administrative separation was proper and was in accordance with the guidance contained in paragraph 6210.6 of the MARCORSEPMAN. Therefore, the NDRB determined that the narrative reason for separation is accurate and relief is not warranted based on issues of propriety .

When the quality of a service member 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 discharge Under Other Than Honorable Conditions 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. The serious nature of the Applicant’s misconduct warranted trial by special court martial , which carries with it confinement and punitive discharge. As such, t he NDRB determined that the awarded characterization of service was appropriate, proper, and equitable . Relief based on equity is denied.

The Applicant contends his wartime service and resulting PTSD warrant consideration for mitigation when determining the characterization of his service . The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue. The Applicant’s medical record documents that he was being treated and followed by appropriately credentialed mental health care providers, that he had a provisional diagnosis of PTSD, and that he was undergoing treatment with various medications related to that diagnosis. However, w hile he may feel that this was the underlying cause of his misconduct or warrants special consideration , the record clearly reflect ed a civilian conviction that was willful misconduct , demonstrating that he was unfit for further service. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the NDRB determined that the narrative reason for separation and the resulting characterization of service at discharge was proper, was equitable, was warranted, and was , and is , consistent with the characterization of discharges given to others in similar circumstances. Accordingly, relief as requested, is 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 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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