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USMC | DRB | 2011_Marine | MD1102091
Original file (MD1102091.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20110907
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)       20071205 - 20080316     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20080317     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20100608      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 19 D a y ( s )
Education Level:        AFQT: 48
MOS: 3521
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle ACM (w/1 Bronze Service Star) NATO-ISAF Afghanistan

Periods of CONF :

NJP:

- 20080818 :       Article 86 (Unauthorized absence from 20080729-20080801, 4 days)
         Awarded : Susp ended:

- 20080918 :       Article 92 ( Violate a lawful order, consuming alcohol under the legal drinking age of 21, wrongfully obtained alcohol by using false pretenses, to wit: an over-the - age - of - 21 wristband)
         Awarded : Susp ended:

- 20090224 :       Article 86 (Unauthorized absence on 20081213, 20090113, and 20090129)
         Article (Disobey a lawful order from an NCO)
         Article (Consume alcohol while in a duty status)
         Article 115 (Sleeping (malingering) in a vehicle during working hours)
         Awarded : Susp ended:

- 20100315 :       Article (Unauthorized absence, failure to go to morning formation 0600, 20100305, did not show up until 0702)
         Awarded : Susp ended:

- 201005 1 0 :       Article (Failure to go to appointed place of duty, FC 411 at 0600, 20100507, showed up at 0700)
         Article (Disobey a lawful order, failed to report to FC 411 for the PFT on 20100507)
         Awarded : Susp ended:

- 20100517 :       Article 92 (Disobey a lawful order, possession of S pice in the trunk of his vehicle)
         Awarded : RIR Susp ended:

SCM:     SPCM:    CC:

Retention Warning Counseling :

- 20080818 :       For your recent NJP for violation of Article 86 of the UCMJ, UA from LOS from 200 8 0729 to 20080801.

- 20080918 :       For your recent violation of Article 92 and 134 of the UCMJ. On 20080907, you violated MCCSSS Policy Letter 07-06, by consuming alcohol under the legal drinking age of 21 and you wrongfully obtained alcohol using false pretenses, to wit: over-the - age - of - 21 wristband.

- 20090128 :       For Article 86 of the UCMJ. On 20090128, you were absent from morning formation at Stone Bay Rifle Range. Missing this formation caused you to be dropped from the firing detail.

- 20100305 :       For you were UA from the 0600 formation for Battalion PT on 20100226, you missed the whole PT session. You informed your NCO that you ran out of gas , however, when later questioned by your SNCO , you told him that you lied to the Sergeant. You have been counseled numerous times on your trend of being UA in the past.

- 20100319 :       For you received NJP on 20100816 for Articles 86 and 92 , on 20080918 for Article 92 and Article 134, on 20090224 for Articles 86, 91, 134 , and 115 , and on 20100319 for A rticle 86.

- 20100512 :       For Company Level NJP on 20100511 for Articles 86 and 92 , on 20100816 for Article 86, on 20080918 for Articles 92 and Article 134, on 20090224 for Articles 86, 91, 134 , and 115 , and on 20100319 for A rticle 86.

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.        The Applicant desires to become eligible for VA benefits.
 2 .        The Applicant contends anxiety disorder and P ost -T raumatic S tress D isorder (PTSD) mitigate his misconduct of record.
3 .        The Applicant contends he did not seek assistance , because he feared discharge for mental disorder.

Decision

Date : 2012 0202             Location: Washington D.C .        R epresentation :

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

Discussion
As a result of the Applicant’s claim of PTSD, 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 discharg e if such change is warranted. In reviewing discharges, the Board presumes regularity in the conduct of g overnment al affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Applicant’s record of service included 6105 counseling warnings and for o f the Uniform Code of Military Justice (UCMJ): Article (Unauthorized absence, ), Article ( Disobey a lawful order from an NCO , ), Article (Failure to obey an order or regulation, ), Article 115 ( Malingering , ), and Article ( Article , 1 specification : Consuming alcohol while in a duty status ). The Applicant a pre-service drug waiver for using marijuana prior to entering the Marine Corps acknowledged complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 4 Dec 2007 . Based on the , command administratively processed for separation. When notified of administrative separation processing, the Applicant rights to consult with a qualified counsel, submit a written statement, and request an administrative board.

: (Nondecisional) The Applicant desires to become eligible for VA 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.
: (Decisional) ( ) . The Applicant contends anxiety disorder and PTSD mitigate his misconduct of record. The Applicant also contends he did not seek assistance , because he feared discharge for mental disorder. The NDRB was unable to obtain the Applicant’s medical records to substantiate his claim of anxiety disorder and PTSD. The Applicant provided no evidence or documentation to support his contention or to overcome the NDRB’s presumption of regularity in the conduct of governmental affairs. Without evidence or documentation, the NDRB was unable to establish PTSD or any other mental condition as a mitigating factor in the Applicant’s misconduct. The record shows the Applicant engaged in a clear pattern of serious and repeated misconduct over the course of his 26 months in service , both before and after his deployment to Afghanistan . These offenses included four serious offenses that could have resulted in confinement and punitive discharge if adjudicated at special court-martial. The NDRB found the Applicant’s command was lenient in not pursuing a court-martial , given the serious and repetitive nature of the misconduct. Relief denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice, r ecord e ntries, and d ischarge p rocess, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall . 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, Automatic Upgrades, 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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