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USMC | DRB | 2011_Marine | MD1101969
Original file (MD1101969.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20110816
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)       20061228 - 20070311     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20070312     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 ) 04 D a y ( s )
Education Level:        AFQT: 63
MOS: 6212
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle

Periods of UA / CONF :

NJP:

- 20100505 :       Article (General A rticle , w rongfully communicate a threat to GySgt by stating that he would kill several people and that he had planned on buying a firearm to do so , 20100427 )
         Awarded: (to E-3) (60 days) Suspended:

SCM:     SPCM:    CC:

Retention Warning Counseling : 2

- 20071102 :       For your performance. On 20071024 you signed out at 0800 to go to a medical appointment when actuality there was no medical appointment and you were found at 1315 asleep in your rack. You willfully disregarded your duties and your actions showed a lack of discipline and devotion to our Marine Corps. Your actions will not be tolerated.

- 20100505 :       For NJP on 20100505.

Page 11 Counseling: 1

- 20100503 : For diagnosis of personality disorder with homicidal ideations.







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 P1900.16E), 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 .

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 134 .



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

Applicant’s Issues

 1.       Applicant contends his discharge was bas ed on an isolated incident in 3 years, 6 months of service with no other adverse action .
2.       Applicant contends his post-service achievements warrant consideration for a discharge upgrade.

Decision

 Date: 20 1 2 1004            Location: Washington D.C .         R epresentation :

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

 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 Board complete d a thorough review of the circumstances that led to his discharge and the discharge process to ensure his discharge met the pertinent sta ndards of equity and propriety. The Applicant’s record of service included two 6105 counseling retention warnings (for diagnosis of personality disorder with homicidal ideations and NJP for violation of UCMJ Article 134 , Communicating a threat) and nonjudicial punishment (NJP) for o f the Uniform Code of Military Justice (UCMJ): Article 134 ( Communicating a threat, wrongfully communicated a threat to a Gunnery Sergeant that he would kill several people and planned to buy a firearm to do so, o/o 27 April 2010 ) . After voicing the homicidal ideation to his chain of command on 27 April 2010 , the Applicant was screened by a Navy Flight Surgeon who determined the Applicant to be acutely homicidal and then coordinated inpatient stabilization and treatment at a local off-base mental health facility. After eight days of evaluation and treatment, the Applicant was released to his command and immediately referred to on-base medical facilities for further mental health evaluation and treatment. Upon conclusion, the military mental health physician, in agreement with the previous civilian mental health facility evaluation findings, determined the Applicant was not compatible with military service and recommended he be administratively separated. Based on the offenses committed by the Applicant, the civil and military mental health evaluations and recommendations, and the Applicant’s potential for further military service, his command processed him for administrative separation. When notified of a dministrative separation processing for M isconduct (C ommission of a S erious O ffense) using the procedure on 5 May 2010 , the Applicant waived rights to consult with a qualified counsel and submit a written statement in rebutt al to the proposed separation.

On 10 June 2011, the Commanding Officer, VMA-211 endorse d the Applicant’s administrative separation package, stating , “(The Applicant) was evaluated and kept under the care of the Superstition Mountain Mental Health Center facility for a period of eight days for a condition of being acutely homicidal. He was released to the command on 5 May 2010. Upon release to VMA-211, he was delivered immediately to the attending psychiatric physician on base for further evaluation. Both the civilian and military physicians commented with very strong recommendations that (the Applicant) was not compatible with military service due to personality disorders that included homicidal tendencies, inability to cope with stressful situations in a healthy manner, prone to confrontational outburst, delusional interpretations of reality and self justification for own actions, inability to empathize with others, egotistical and selfish attitude that the doctor labeled narcissistic. He signed an issued Military Protective Order to prevent contact with his wife who he directly threatened to have murdered. (The Applicant’s wife) moved out of state and currently resides in Virginia. His other threats included shooting his Sergeant in the head and possibly sabotaging of squadron aircraft. At office hours, the respondent al luded to having been misquoted and misunderstood by his peers, supervisors, and physicians. He claims he will not hurt anyone now or in the future …Additionally, his counseling for PTSD screening was completed by a clinical psychologist at MCAS Yuma on 6 May 2010. (The Applicant) did deploy with the 13th MEU during this enlistment. ” On 30 August 2010, the Separation Authority directed that the Applicant be separated from the Marine Corps with a General (Under Honorable Conditions) discharge due to Misconduct (Commission of a Serious Offense). The Applicant was discharged on 15 September 2010 as directed.


: (Decisional) ( ) . The Applicant contends his discharge was based on an isolated incident in 3 years, 6 months of service with no other adverse action . Despite a service member’s prior record of service, certain serious offenses warrant separation from the Naval Service in order to maintain good order and discipline. While he may feel personal and professional stressors were the underlying cause of his misconduct, the record clearly reflects his misconduct was willful and demonstrated he was unfit for further service. The evidence of record does not demonstrate the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. Per the Marine Corps Separation and Retirement Manual (MARCORSEPMAN), when a service has been honest and faithful, 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 outweigh the positive aspects of the member’s service record. An Under Other Than Honorable Conditions discharge is warranted when a Marine commits or omits an act that constitutes a significant departure from the conduct expected from a member of the Naval Service. Despite the recommendation from his shop sergeant that he receive an Honorable discharge, his commanding officer and the Separation Authority determined that a General discharge was more appropriate. The NDRB agrees with the Separation Authority. The Applicant’s conduct, which forms the primary basis for determining the character of service, reflects the Applicant’s willful failure to meet the requirements of conduct expected of all Marines, especially considering his grade and length of service, and falls short of w hat is required for an upgrade in the characterization of service. Relief denied.

: (Decisional) ( ) . The Applicant contends his post-service achievements warrant consideration for a discharge upgrade. The NDRB considers post-service conduct in order to determine if the misconduct committed during active duty was indicative of the Applicant ’ s character or an aberration. However, there is no law or regulation that provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question. The Applicant provided character and employer reference letters, education and training verification, and a personal statement as evidence of post-service accomplishments. Although his efforts to improve his life are noteworthy, he failed to provide adequate documentation and evidence on his behalf to support a thorough post-service conduct review . He could have provided documentation as specified in the Post-Service Conduct paragraph in the Addendum , however, c ompletion of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case by case basis. Without any additional post-service documentary evidence available for review , the Board determined the awarded characterization of service shall remain General ( Under Honorable Conditions ) . Relief denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, post-service documentary evidence, and the administrative separation process, the Board found the discharge was proper and equitable. 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 for additional information.



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), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 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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