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USMC | DRB | 2012_Marine | MD1200281
Original file (MD1200281.rtf) Auto-classification: Denied
ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20111115
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)       20030221 - 20031117     Active:   20031118 - 20070920 HON

Period of Service Under Review:
Date of Current Enlistment: 20070921     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20100128      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 07 D a y ( s )
Education Level:        AFQT: 37
MOS: 2111
Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle , Pistol (2 nd Awd) , , , (3 RD Awd) , , ,
Periods of UA / CONF :

NJP:

- 20060411 :       Article ( Failure to obey order or regulation , 2 specifications )
         Specification 1: Consumed alcoholic beverages while under the age of 21.
         Specification 2: Displayed drunkenness.
         Awarded : Susp ended:

SCM:     SPCM:    CC:

Retention Warning Counseling :

- 20040514 :       For academic test failure.

- 20091007 :       For unauthorized absence, specifically, on or about 20090924 , without authority , you failed to report to PT.

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

          “ CONTINUOUS HONORABLE ACTIVE SERVICE FROM 031118 UNTIL 070920 ”
         “ UNDER OTHER THAN HONORABLE CONDITIONS ”
        
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 6419, SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL , 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 IV, Para 403m(7)(b), Presumption Concerning Court-Martial Specifications .

 C . 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 .

D. U.S. Code, Title 10, Section 1553 (d) .

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

Applicant’s Issues

 1. T he Applicant seeks an upgrade to facilitate access to Department of Veterans Affairs (VA) educational benefits .
 2. T he Applicant contends his misconduct was an isolated incident in what was an otherwise outstanding military career.
3. T he Applicant contends that his misconduct of record was the result of stress from depression and anxiety resulting from      Post - Traumatic Stress Disorder (PTSD).
Decision

Date: 20 1 2 0510            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 directly related to his combat service in Iraq . As such, in accordance with U.S. Code, Title 10, Section 1553 (d) (1), the NDRB included a member who is a physician, clinical psychologist, or psychiatrist. Additionally, 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 Applicant ’s service record documents two deployment s as a unit small arms repair technician in the Al-Anbar Province of Iraq while conducting combat support operations for Operation I raqi Freedom . The military service record further documents that he was awarded a Navy and Marine Corps Achievement Medal for his combat support efforts while deployed in a designated combat zone .

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 issue s for the NDRB’s consideration related to the equity of the characterization of his service; 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 o f both equity and propriety. The Applicant’s enlistment record reflects entry into military service at age 1 7 (with parental consent) with a waiver to enlistment and induction standards for a pre-service illegal drug use (marijuana) . During the enlistment process, the Applicant acknowledged his complete understanding of the Marine Corps Policy Concerning the Illegal Use of Drugs - in writing - on 14 February 2003 . The Applicant completed his first four - year enlistment contract honorably and executed an immediate reenlistment for four years ; he completed 2 years and 4 months of this second enlistment period before being discharged . The Applicant’s record of service documents two Marine Corps Separation and Retirement Manual (MARCORSEPMAN) paragraph 6105 retention-counseling warnings while in service and one nonjudicial punishment proceeding for two violation s of Article 92 ( Failure to obey order or regulation) of the Uniform Co de of Military Justice.

T he Applicant was discharged in accordance with paragraph 6419 of the MARCORSEPMAN (separation in lieu of trial by court - martial) and was afforded all his administrative rights that pertain. In order to warrant separation in lieu of trial by court - martial, the Applicant must have requested separation - in writing - for the good of the service, to escape charges that have been preferred against the A pplicant for referral to trial by a Special Court-Martial or above. The Applicant was pending S pecial C ourt -M artial charges for two separate violations of Article 112(a) (W rongful use, possession, etc., of a controlled substance ), which would warrant a punitive discharge if adjudicated and awarded at trial by S pecial or G eneral C ourt -M artial. The request for separation must contain certain basic requirements - which were required to be satisfied - before receiving approval by the Separation Authority. In the Applicant’s request, he must have clearly affirmed that his rights were explained to him - thoroughly - to include his right to consult with a qualified defense counsel. Furthermore, the Applicant must admit his guilt to the charges, as preferred against him, and further certify that he had a complete understanding of the negative consequences of his actions, the narrative reason for his separation, and the likely characterization of his service upon separation - Under Other Than Honorable Conditions. The Applicant must further acknowledge that if discharged with an OTH, it might deprive him of virtually all veterans ’ benefits and that he might expect to encounter substantial prejudice in civilian life in situations where the type of service rendered, or the character of discharge received, may have a bearing.
 Issue 1: (Nondecisional Issue) The Applicant seeks an upgrade to facilitate access to VA educational benefits . 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.

Issue 2: (Decisional Issue) ( ) . T he Applicant contends his misconduct was an isolated incident in what was an otherwise outstanding military career. The Applicant requested administrative separation for the good of the service in order to avoid the punitive e ffects of a trial by court - martial . H e consulted with, and was represented by, an appropriately credentialed legal defense counsel throughout the process. The request for separation satisfied all the elements established by the MARCORSEPMAN; as such, the command accepted the Applicant’s request. The Applicant was pending trial for two separate specifications of wrongful use of a controlled substance (marijuana) as verified by Naval Drug Lab Urinalysis Testing. As such, t he NDRB determined that the Applicant was separated properly in accordance with chapter 6419 of the MARCORSEPMAN. 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. Violation of Article 112(a) is one such offense, requiring mandatory processing for administrative separation, regardless of grade, combat experience, or time in service. This action usually results in an unfavorable characterization of discharge or, at a maximum, a punitive discharge with the possibility of confinement, if adjudicated and awarded as part of a sentence by a S pecial or G eneral C ourt- M artial. The Applicant requested separation for the good of the service in order to escape the punitive effects of trial by S pecial C ourt -M artial and a possible Bad Conduct Discharge. Further exacerbating the Applicant’s misconduct is the consideration that he was on his second enlistment and was a Noncommissioned Officer - fully aware of, and responsible for enforcing, the Marine Corps Policy regarding illegal drug use. Conduct of this nature is not tolerated and cannot be condoned. After a careful review of the Applicant's service record, and taking into consideration his statements, the statements of his character witnesses, and his two deployments to Iraq, along with the facts and unique circumstances of this case, the NDRB determined the quality of the Applicant’s service did not meet the standard of acceptable conduct and performance to warrant an Honorable characterization. The characterization of service received at discharge was proper, was warranted, and was and is consistent with the discharge characterization received by others with similar discharges. Relief denied.

Issue 2 (Decisional) (Equity) . The Applicant contends that his misconduct of record was the result of stress from depression and anxiety related to PTSD. The NDRB requested and received the Applicant’s in-service and post-service medical record s, to include the VA compensation and pension exam regarding the Applicant ’ s claim o f PTSD. A fter an in - depth review of the Applicant’s documentation (to include portions of his medical treatment record), his service record, and discharge physical, the contention of PTSD was not established. The evaluating psychiatrist with the VA determined that the Applicant does not meet the diagnostic criteria for PTSD, neither in terms of having a Criterion A stressor, nor in terms of symptom presentation; without a criterion A stressor (traumatic event), there can be no diagnostic determination of PTSD . After a careful review of the Applicant’s combat deployment history, in-service mental health issues (depression related to miscarriage) , and the unique issues related to this discharge action, the NDRB determined the Applicant’s contention of PTSD was not a mitigating or contributory factor to his misconduct of record.

Characterization of service at discharge is recognition of a Marine’s performance and conduct throughout a period of enlistment and is not necessarily dependent upon the narrative reason for separation. When the quality of a member’s service 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 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 outweighed the positive aspects of the member’s service record. However, an Under Other Than Honorable Conditions characterization of service 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 S ervice. Given the facts of the record and the information provided by the Applicant, the NDRB determined that the Applicant’s conduct involv ed one or more acts or omissions that constituted a significant departure for the conduct expected of a Marine , which d id outweigh the overall positive aspects of his record. As such, given the facts and circumstances unique to this case, the NDRB determined that the discharge was proper and equitable as issued and that relief based on equitable grounds is not warranted. The NDRB voted 5-0 that the characterization of service at discharge and the narrative reason for separation shall not change. R elief denied.

Summary : After a thorough review of the available evidence, to include the Applicant’s record entries and discharge process, the NDRB determined that Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain IN LIEU OF TRIAL BY COURT MARTIAL. The Applicant remains eligible for a personal appearance hearing for 15 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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