Upgrade.Vet

USMC | DRB | 2012_Marine | MD1200203

Original file (MD1200203.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20111103

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)       20000911 - 20010520     Active:

Period of Service Under Review:
Date of Current Enlistment: 20010521     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20060424      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 19 D a y ( s )
Education Level:        AFQT: 53
MOS: 6092
Proficiency/Conduct M arks (# of occasions): ( 14 ) / ( 14 )        Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle , , , , -N , MM

Periods of CONF : 20050127 - 20051108 (2 86 days Pre-Trial)

NJP:

- 20020906 :       Article ( Absent without leave , 2 specifications )
         Specification 1: Unauthorized Absence - did a bsent himself from his organization at or about 1400 on 20020718
         Specification 2: Unauthorized Absence - did a bsent himself from his organization at 0550 on 20020821 and did remain so absent until apprehended at 0920 on 200 2 0821
         Article 92 (Violate a lawful general regulation, wrongfully consuming alcohol while under the age of 21)
         Awarded : Susp ended:

- 20051220 :       Article 91 ( Insubordinate conduct toward a Noncommissioned Officer , disobeying a n order to turn your unauthorized weapon in to your SNCOIC )
         Art icle 92 ( Failure to obey order or regulation, wrongfully having unauthorized weapon in barracks )
         Article 109 ( Destruction of non government property - breaking the back window of a Marine’s vehicle )
         Article 121 ( Larceny and wrongful appropriation - taking a Marine’s v ehicle without permission )
         Awarded : Susp ended:

S CM:     SPCM:    CC:

G CM:

- 20051109 :       Art icle 92 ( Failure to obey order or regulation , 2 specifications )
         Specification 1: Failure to obey regulation by w rongfully failing to register his privately owned vehicle on base .
         Specification 2: Dereliction in the performance of duties on 27 Jan 2005 .
         Sentence :

Retention Warning Counseling : 5

- 20011205 :       For SMN was caught drunk in the squad bay by one of the fire watches on 20011202 at 2347, come to find out that SNM is under age, which could result in NJP.

- 20020220 :       For you were in violation of Article 134, by wearing civilian attire while being on an INDOC status. You were also seen without your crutches, which were prescribed by a competent medical doctor.

- 200203 0 4 :       For you were in violation of Article 86 by being UA from appointed place of duty, phone watch, on 20020228 at 1020.

- 20020424 :       For violation of Articles 108 and 92. You have been counseled on your lack of military bearing and discipline as a Marine. On 20020401 you punched a vending machine causing you to fracture your right hand. Since then you have had the cast replaced on three occasion s d ue to not following the Medical Officer ’ s direction IAW your Light Duty Chit. On 20020417 you were found playing horseshoes , which caused your right hand to swell and to be taken to the Naval Hospital, Pensacola to have your hand reevaluated.

- 20051123 :       For violation of Article 92, F ailure to obey order or regulation.

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.       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 (VA) medical benefit program s to address his disabilities.

2.       Decisional issues : The Applicant contends that his discharge characterization of service was inequitable , because it was based on a perception of gu ilt by his command, even though the G eneral C ourt -M artial found him not guilty of the primary crimes that were referred. Additionally, t he Applicant contends that d epression and anxiety related to Post - Traumatic Stress Disorder (PTSD) warrants consideration as extenuating and mitigating factors to his discharge and the characteri zation of service he received.

Decision

Date: 20 1 2 0202         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 personal statement; the Applicant stated that he was suffering from PTSD and Traumatic Brain Injury (TBI) related to his military service . 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 Applicant identified two decisional issues to the NDRB - equity related to the characterization of discharge. Additionally, the 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 equity and propriety.

The Applicant entered active duty military service at age 18 on a five -year commitment on an Airframe Mechanic Contract for training . He entered active duty service with waiver to enlistment conditions or standards due to a pre-service serious offense law violation, adjudicated. The Applicant’s record of military service further documents that he is a combat veteran, having deployed in support of Operation IRAQI FREEDOM (OIF) . The Applicant completed two deployments; one deployment in support of OIF I aboard a U.S. Navy Aviation Supply Ship and a second deployment aboard Al-Asad Air Base as a member of a force protec tion detachment during OIF II.

The Applicant’s record of service documents five paragraph 6105 retention-counseling warnings during his enlistment period. Moreover, his record of service during his enlistment also includes two nonjudicial punishments for violations o f the Uniform Code of Military Justice (UCMJ). Specifically, the two nonjudicial punishments included violations of Article 86 (Absence without leave - 2 separate specification s ) , Article 91 (Insubordinate c onduct) , Article 92 (Failure to obey order or regulation - 2 specifications), Article 109 (Loss, damage, destruction of other than military property) , and A rticle 12 1 ( Larceny). The Applicant’s service record further contains a General Court - Martial conviction for violation of Article 92 of the UCMJ.

On 07 December 2005 , the Applicant was advised of h is rights pursuant to administrative separation. H e acknowledged understanding of the basis for separation (Misconduct - Pattern of Misconduct) and the proposed recommendation for a characterization of service at discharge of Under Other Than Honorable Conditions. The Applicant chose to exercise his right to consult with qualified military counsel - which he did, but chose not to seek an administrative discharge hearing board to present h is case for retention. Additionally, he declined to provide written matters for the Separation Authority’s consideration. The Applicant did not submit any formal evidence or documentation that was not already contained in the official service records to rebut the NDRB’s presumption of regularity in governmental affairs or to challenge or refute any of h is misconduct.
Non-decisional Issue - The Applicant seeks an upgrade to his discharge characterization of service in order to achieve eligibility for Department of Veterans Affairs (VA) medical benefits and counseling. 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 w hich the NDRB can grant relief.

(Decisional Issues) (Propriety/ ) . The Applicant contends that his discharge characterization of service was inequitable , because it was based on a perception of guilt by his command , even though the G eneral C ourt -M artial found him not guilty of the primary crimes that were referred. Additionally, the Applicant contends that depression and anxiety related to PTSD and TBI warrants consideration as extenuating and mitigating factors to his discharge and the characteri zation of service he received.

Propriety - The Applicant completed three years and eleven months of his five-year enlistment contract. He was discharged, involuntarily, from the Marine Corps due to Misconduct , specifically, for having established a pattern of misconduct as defined by paragraph 6210.3 of the Marine Corps Separation and Retirement Manual (MARCORSEPMAN). The basis of the recommendation was the Applicant’s NJP (20020906) and his General Court - Martial Conviction (20051109) , which violated four retention counseling warnings . Following notification of the proposed separation action on 07 December 2005, the Applicant received a second nonjudicial punishment (20051220) for his continued Misconduct. The Separation Authority reviewed the Command’s recommendation for separation; he determined that the Applicant’s documented record of service established the minimum requirements for discharge based on a n established pattern of misconduct; that separation from the service in the Applicant’s case was warranted; and further, that the proposed characterization of service - Under Other Than Honorable Conditions - was warranted. On 30 March 2006, the Separation Authority directed the Applicant’s discharge for the reason as stated and further specified that he receive an RE-4 reenlistment code - not recommended for reenlistment. The NDRB completed a thorough review of the Applicant’s issues and the discharge process and determined that the evidence of record did establish the basis for discharge in accordance with paragraph 6210.3 of the MARCORSEPMAN - Misconduct (Pattern of Misconduct); as such, no change is warranted b ased on matters of propriety.

Decisional Issue 1 (Equity) - The Applicant contends that his discharge characterization of service was inequitable , because it was based on a perception of guilt by his command , even though the G eneral C ourt -M artial found him not guilty of the primary crimes that were referred . Whenever a Marine is involved in misconduct, as described in paragraphs 6210 of the MARCORSEPMAN, commanders are directed to process the Marine for separation , unless rehabilitation and retention are determined to be warranted . Additionally, the characterization of service normally shall be under other than honorable conditions. The Applicant’s service record documents a nonjudicial punishment for misconduct (Sept 2002 - unauthorized absences and failure to obey orders and regulation). At the time of this NJP, the Applicant had already received formal counseling - in writing - on four separate occasions for other misconduct; each of these written counseling entries included a specific advisement that any further misconduct could warrant punitive action (court-martial) or administrative separation. In January 2005, the Applicant was ref erred to trial by General Court- Martial for multiple charges ; on 09 Nov 2005, he was found guilty of violating two specification s of Article 92 of the UCMJ and was adjudged a reduction in rank to E-2/Private First Class and to serve 30 days confinement in the base brig. The Court Martial Convening Authority reviewed the results of the court - mart i al, upheld the decisions, did not offer clemency, approved the sentence as adjudged, and ordered it executed. On 07 December 2005, the commander recommended the Applicant for administrative separation pursuant to paragraph 6210.3 of the MARCORSEPMAN for Misconduct (Pattern of Misconduct) . The specific basis for the separation was the documented violations of the UCMJ (NJP and GCM) , coupled with the violation of four retention-counseling warnings, and the Commander’s de termination that rehabilitation was no longer warranted .

Characterization of service is determined by the quality of the member’s total performance of duty and conduct during the current enlistment, including the reason for separation. Other considerations shall be given to the member’s length of service, grade, aptitude, physical and mental condition, and combat service. An H onorable characterization of service is warranted when the quality of a member’s service generally meets the standard of acceptable conduct and performance for N aval personnel, or is otherwise so meritorious that any other characterization of service would be clearly inappropriate. A n Under Other Than Honorable Conditions discharge 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. Based on the Applicant’s record of service, the NDRB determined the Applicant engaged in conduct involving one or more acts or omissions that constituted a significant departure from the conduct expected of members of the Naval Service, and the awarded characterization of service, as issued, was warranted. Accordingly, relief as requested is denied.

Decisional Issue 2 (Equity) - The Applicant contends that depression and anxiety related to PTSD and TBI warrants consideration as extenuating and mitigating factors to his discharge and the characterization of service he received. 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 reviewed the Applicant’s service medical record and VA evaluation and documentation. The Applicant is a combat veteran; he supported the initial invasion of Iraq from a United States Navy Aviation Supply Ship. Furthermore, he returned to Iraq on a second deployment as a member of a provisional security detachment aboard Al-Asad Air B ase. During this deployment, he was medically evacuated out of theater for a fractured pelvis - resultant from falling from the back of a military 7-ton vehicle during a shift change-over while aboard the Air B ase. Following treatment and therapy, the Applicant was placed on a Limited Duty period for approximately 7 months before being returned to full duty. During his service, the A pplicant was seen and diagnosed with PTSD; the records further indicate d that this condition was resolving with treatment. The VA mental health evaluation specifically states that i t was conducted without the aid of the Applicant’s service record or medical record and is based on the contentions of the Applicant. While the Applicant may feel that PTSD symptoms were the underlying cause of his misconduct, the record clearly reflects willful misconduct, beginning early in his service and continuing t hroughout the enlistment - both before and after his combat deployment s . After a detailed review of the Applicant’s medical record (both in-service and VA evaluations), coupled with his service record, t he NDRB determined that the Applicant’s contention of PTSD , though diagnosed, was not a mitigating factor associated with the misconduct of record.

T he NDRB discerned no impropriety in the discharge action that would warrant a change nor did it determine any inequity in the characterization of the Applicant’s service at dis charge. Based on the Applicant’ s documentation and his official service records, coupled with the facts and circumstances unique to this case, the NDRB determined that relief was not warranted. The Applicant engaged in serious and repetitive misconduct involving one or more acts or omissions that constituted a significant departure from the conduct expected of members of the Naval Service. As such, the NDRB determined that an upgrade in the Applicant’s characterization of service at discharge is not appropriate and is not warranted. Furthermore, the NDRB determined that the narrative reason for separation was proper as issued and accurately reflected the Applicant’s reason for separation; therefore, it shall remain Misconduct.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, medical and service record entries, police reports, and the discharge process, the NDRB 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 his 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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USMC | DRB | 2012_Marine | MD1200203

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