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USMC | DRB | 2011_Marine | MD1102106
Original file (MD1102106.rtf) Auto-classification: Denied
ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20110913
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)       20020211 - 20021016     Active:   2002 1017 - 20070117 HON

Period of Service Under Review:
Date of Current Enlistment: 20070118     Age at Enlistment:
Period of E nlistment : Years Months     Age at Re-enlistment: 22
Date of Discharge: 20090712      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 24 D a y ( s )
Education Level:        AFQT: 55
MOS: 6045/8411
Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle , , , (2) , (3) , , , , , CoC (Individual Award) (2) , CoA

Periods of UA / CONF :

NJP:     SCM:     SPCM:    CC:

Arrest:

- 20090601 :       Offense: Unlawfully conspir ed to wrongfully distribute five (5) or more kilograms of cocaine, a scheduled II controlled substance.
         Sentence : N ot found in record

Retention Warning Counseling :

- 20081010 :       For poor judgment, failure to follow rules and regulation s , and not adhering to our Core Values.

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:
         
         “ 2002 10 17 ”
         “ CONTINUOUS HONORABLE ACTIVE SERVICE FROM 02 1017 UNTIL 070117 ”
         “ UNDER OTHER THAN HONORABLE CONDITIONS ”
         “ MARCORSEPMAN PAR 6210.6 ”
        
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. 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 112(a).

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

 Nondecisional issues: The Applicant seeks an upgrade in the characterization of his service at discharge in order to facilitate employment opportunities and disability benefits from the D epartment of Veterans Affairs.

Decisional issues : (1) The Applicant contends that his misconduct of record was the result of undiagnosed Post - Traumatic Stress Disorder (PTSD) and alcohol dependency, which inhibited his judgment and reasoning and warrants consideration as extenuating and mitigating factors to his discharge and the characterization of service he received. (2) The Applicant further contends that he has been rehabilitated, paid his debt to society, and is attempting to be a productive law - abiding member of society and seeks consider ation for an upgrade as such.

Decision

 Date: 20 1 2 0308           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 issues statement; the Applicant stated that he was suffering from PTSD related to his combat service in Iraq . 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 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 discipline of the Naval Service. T he NDRB completed a thorough review of the circumstances that led to the Applicant’s discharge, and the discharge process, to ensure the discharge met the pertinent standards of both equity and propriety.

The Applicant entered military service at age 1 7 with a waiver to enlistment and induction standards for exceeding h eight/weight standards on a four year Open Contract E nlistment o ption ; he was subsequently trained as an aviation maintenance clerk . The Applicant completed four years and three months of his four-year enlistment with four months of extension - honorably - and then executed an immediate reenlistment . The military service record further documents that he is a combat veteran, having completed three deployments in the Al-Anbar Province of Iraq in support of Operation IRAQI FREEDOM (OIF).

The Applicant’s service record documents one retention counseling warning during his current enlistment, but no nonjudicial or judicial punishments. However, his service record documents a civilian arrest by F ederal authorities on 01 June 2009 for his participation in a conspiracy to wrongfully and unlawfully distribute five (5) or more kilograms of cocaine, a schedule II controlled substance , which is a violation of Federal and State drug enforcement laws. Based on this civilian criminal arrest, the command recommended the Applicant’s administrative discharge in accordance with paragraph 6210.6 of the Marine Corps Separation and Retirement Manual (MARCORSEPMAN) (Misconduct - Commission of a Serious Offense) and that the Applicant receive an Under Other Than Honorable Conditions c haracterization of service, if discharged. The companion military violation for this civilian offense is violation of Article 112(a) of the Uniform Code of Military Justice (Wrongful distribution of, or, with intent to distribute, wrongful possession, manufacture, or introduction of a schedule II controlled substance - cocaine). Violation of this article warrants confinement for up to a maximum of 15 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 09 June 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 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 09 June 2009; he elected to waive his right to request an administrative hearing board be held , but was represented by a qualified military defense counsel in his decision making process. Based on the available evidence of record, the Separation Authority found that a preponderance of the evidence presented proved the act alleged in the notification letter , specifically , that the Applicant had committed misconduct due to the commission of a serious offense. The Separation Authority approved the recommendation for discharge. On 23 June 20 09 , s 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. Furthermore, s he directed that the Applicant’s character of discharge be Under Other Than Honorable Conditions. T he proceedings were reviewed and were determined to be sufficient in law and fact by a qualified staff judge advocate prior to the Separation Authority taking final action. The Separation Authority further directed that the Applicant be barred from all Marine Corps Bases, Western Region and that the Applicant receive an RE-4B reenlistment code (not recommended for reenlistment, in - service drug use). The Applicant was discharged on 12 July 2009 per the directio n of the Separation Authority.

Nondecisional Issues : T he Applicant seeks an upgrade in the characterization of his service at discharge in order to facilitate employment opportunities and disability benefits from the Department of Veterans Affairs . There is no requirement, or law, that grants re-characterization solely on the issue of facilitating access to VA benefits. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing educational opportunities or 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 which the NDRB can grant relief. The Applicant is directed to the Addendum , specifically, the paragraph regarding the U.S. Department of Veterans Affairs.

Decisional Issue (Propriety/ ) . (1) The Applicant contends that his misconduct of record was the result of undiagnosed PTSD and alcohol dependency, which inhibited his judgment and reasoning and warrants consideration as extenuating and mitigating factors to his discharge and the characterization of service he received. (2) The Applicant further contends that he has been rehabilitated, paid his debt to society, and is attempting to be a productive law - abiding member of society and seeks consideration for an upgrade as such.

Propriety - 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. Moreover, despite a Marine’s prior record of service, certain serious offenses, even though isolated, warrant separation from the N aval S ervice in order to maintain proper order and discipline. The charges specified against the Applicant for prosecution by F ederal trial were serious offenses per the UCMJ: punishable by a punitive discharge and confinement for up to 15 years , if adjudicated by a special or general court-martial. Specific to the Applicant, 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 , based on a preponderance of the evidence, sought administrative discharge proce dures in the interim . The Separation Authority determined that a preponderance of the evidence presented ( Federal indictment ) proved the acts or omissions alleged in the notification letter , specifically , that the Applicant had committed misconduct due to the commission of a serious offense. 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.

Equity - 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 NDRB requested the Applicant’s military medical record and any VA treatment records in support of this contention; the medical records were not located and were not available for review. The Applicant’s service record documents service in a declared combat zone by the awarding of the Iraqi Campaign Medal and is further supported by three unit deployments in support of Operation IRAQI FREEDOM. However, the service record does not document any concerns f or , or issues of , PTSD or Traumatic Brain Injury (TBI). Additionally, the Applicant provided no documentary evidence in support of his contention, stating only that F ederal prison clinicians diagnosed him with PTSD and that this condition inhibited

his judgment and reasoning. The Applicant may feel that this was the underlying cause of his misconduct or warrants special consideration , however, the record of evidence clearly reflect s a civilian conviction for conspiracy to wrongfully distribute five kilograms of cocaine. This was w illful and deliberate misconduct and was of a nature that demonstrat ed that the Applicant was no longer f it for further service.

There is no law or regulation to upgrade an unfavorable discharge based solely on the completion of rehabilitation, passage of time , or good conduct in civilian life subsequent to leaving the service. The NDRB is authorized to consider outstanding post-service factors in the re - characterization of a discharge to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review. However, the Applicant should be aware submission of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the NDRB on a case-by-case basis. 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. An upgrade or change would be inappropriate. Accordingly, relief as requested is denied.
(NDRB Board Issue) - The Applicant is advised that the VA has announced special access for VA enrollment available to combat veterans discharged under other than dishonorable conditions (i.e., a discharge characterization of Bad Conduct Discharge or better) for Post - Traumatic Stress Disorder treatment. 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 the U.S. Department of Veterans Affairs (VA) for more information. Further information is available at the VA’s website: http://www.ptsd.va.gov/public/pages/help-for-veterans-with-ptsd.asp and http://www.va.gov/healthbenefits/vhbh/ . Additionally, support is available by phone at: 1-877-222-VETS (8387).
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), 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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