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USMC | DRB | 2012_Marine | MD1200343
Original file (MD1200343.rtf) Auto-classification: Denied
ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20111128
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)       20021214 - 20030506     Active:   20030507 - 20061015 HON

Period of Service Under Review:
 Date of Current Enlistment: 20061016     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20090212      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 27 D a y ( s )
Education Level:        AFQT: 37
MOS: 1812
Fitness Reports:

Awards and Decorations ( per DD 214):      , , , , (w/1 Star) , (w/1 Star) , , , MUC , MM , COA

Periods of UA / CONF : C onfinement 20081121 - 20090119 (59 days)

NJP:     SCM:              CC:

SPCM:

- 20081112 :      Article (Violate a lawful general order, 7 specifications )
         Specification 1: Wrongfully striking numerous recruits with excessive force to correct the position of recruits.
         Specification 2: Wrongfully hazing numerous recruits, ordering recruits to fall from the standing position to their knees onto the cement ground.
         Specification 3: Wrongfully hazing numerous recruits, ordering recruits to clean and exercise in the shower room for an extended period of time and creating a “gas chamber” effect by mixing excessive amounts of concentrated bleach and/or cleaning solution, body wash, and hot water.
         Specification 4: Wrongfully submitting numerous recruits to unauthorized incentive training by ordering recruits to clean their rifles over their heads for an extended period of time.
         Specification 5: Wrongfully failing to allow numerous recruits a minimum twenty five minutes to consume their meal in violation of the Depot SOP.
         Specification 6: Wrongfully hazing recruits, ordering them to ingest “clean lubricate protect” (CLP) fluid, a known hazardous substance.
         Specification 7: Wrongfully hazing recruits, forcing them to wear a female Marine uniform prior to taking the Platoon pho t ograph.
         Article 107: (False official statement, “I did not witness or participate in any of the misconduct alleged by recruits of Platoon 2048 Company G , ” which statement was totally false. )
         Article (Assault, 4 specifications )
         Specification 1: Unlawfully choke numerous recruits of diverse occasions.
         Specification 2: Unlawfully strike numerous recruits in their throats with the edge of his hand between his little finger and wrist in a chopping motion (“knife hand”) and with the area between his thumb and forefinger in a jabbing motion (“throat chop” or “ throat jack”).
         Specification 3: Unlawfully punch numerous recruits in the face.
         Specification 4: Unlawfully kick numerous recruits.
         Sentence Adjudged : , To be confined for a period of 89 days [ CONF: 20081121 - 20090119 ( 59 days ) ]
         Convening Authority Action : The sentence is approved; however, in consideration of defendant ’ s request for clemency, all confinement in e xcess of 60 days is suspended.

Retention Warning Counseling:

- 20081117 :      For violation of Depot Order 1513.6a [Recruit Training Order] on 20081015, you were relieved by the Commanding General due to drill malpractice. Your MOS of 0911 is voided and you are being transferred to a non-special duty assignment billet until completion of further administrative and legal matte r s.

NDRB Documentary Review Conducted (date):        20110602
NDRB Documentary Review Docket Number:   MD11-00829
NDRB Documentary Review Findings:                 Proper as issued and that no change is warranted.
Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:
         Block 13, Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded, should read: “COMBAT ACTION RIBBON MARINE CORPS GOOD CONDUCT MEDAL SEA SERVICE DEPLOYMENT RIBBON (W/ 2 STARS) HUMANITARIAN SERVICE MEDAL IRAQ CAMPAIGN MEDAL (W/ 1 STAR) GLOBAL WAR ON TERRORISM SERVICE MEDAL GLOBAL WAR ON TERRORISM EXPEDITIONARY MEDAL NATIONAL DEFENSE SERVICE MEDAL MERITORIOUS UNIT COMMENDATION MERITORIOUS MA ST CERTIFICATE OF APPRECIATION ”
         “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 030507 UNTIL 061015 ”
         
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:                  Other Documentation:    
                  Additional Statements:
         From Applicant:           From/To Representation:           From/To Congress member:        

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 92, 107 , and 128 .

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

Applicant’s Issues

 Issue 1: The Applicant contends that his misconduct of record was the result of stress from depression and anxiety related to Post - Traumatic Stress Disorder (PTSD) , which warrants consideration as extenuating and mitigating factors to his discharge and the characterization of service he received.

Issue 2: The Applicant contends his post-service achievements warrant consideration for a discharge upgrade.

Decision

 Date: 20 1 2 0 411            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 related to combat service in Iraq. The Applicant ’s service record documents that he completed three deployments to Iraq as a n M1A1 Tank Crewman while conducting combat operations in support of Operation IRAQI FREEDOM (OIF). The military service record further documents that he was awarded the Combat Action Ribbon for his individual actions against enemy forces. 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. Additionally, in accordance with section 1553 (d) (2), the service secretary expedited a final decision and accorded the case sufficient priority to ac hieve 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 g overnment al a ffairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Applicant identif ied two decisional issues for the NDRB ’s consideration related to the equity of the discharge action . T he NDRB complete d a thorough review of the circumstances that led to his discharge , and the discharge process , to ensure the discharge met the pertinent standards of equity and propriety.

The Applicant’s record of service included 6105 counseling retention warning and one S pecial C ourt - M artial for violations of the Uniform Code of Military Justice (UCMJ): Article 92 ( Failure to obey an order or regulation, 7 specifications: Wrongfully striking numerous recruits with excessive force to correct the position of the recruits , o/o 24 May-26 Jul 2008 ; wrongfully hazing numerous recruits, ordering recruits to fall from the standing position to their knees onto the cement ground , o/o 24 May-26 Jul 2008 ; wrongfully hazing numerous recruits, ordering recruits to clean and exercise in the shower room for an extended period of time and creating a “gas chamber” effect by mixing excessive amounts of chlorinated bleach and/or cleaning solution, body wash, and hot water , o/o 24 May-26 Jul 2008 ; wrongfully submitting numerous recruits to unauthorized incentive training by ordering recruits to clean their rifles over their heads for an extended period of time , o/o 24 May-26 Jul 2008 ; wrongfully failing to allow numerous recruits a minimum twenty five minutes to consume their meal in violation of the Depot SOP , o/o 24 May-26 Jul 2008 ; wrongfully hazing recruits, ordering them to ingest “clean lubricate protect” (CLP) fluid, a known hazardous substance , o/o 24 May-26 Jul 2008 ; w rongfully hazing recruits, forcing them to wear a female Marine uniform prior to taking the Platoon photograph , o/o 24 May-26 Jul 2008 ) , Article 107 ( False official statement, “ I did not witness or participate in any of the misconduct alleged by recruits of Platoon 2048 Company G , ” which statement was totally false to the command investigating officer, o/o 1 Aug 2008 ) , and Article 128 ( Assault, 4 specifications: u nlawfully choke numerous recruits o n diverse occasions , o/o 24 May-26 Jul 2008 ; u nlawfully strike numerous recruits in their throats with the edge of his hand between his little finger and wrist in a chopping motion (“knife hand”) and with the area between his thumb and forefinger in a jabbing motion (“throat chop” or “throat jack”) , o/o 24 May-26 Jul 2008 ; u nlawfully punch numerous recruits in the face , o/o 24 May-26 Jul 2008 ; u nlawfully kick numerous recruits , o/o 24 May-26 Jul 2008 ) . Based on the offenses committed by the Applicant , and the subsequent findings from a command investigation, the Applicant’s command chose to refer the alleged misconduct to t rial by S pecial C ourt -M artial. Special Court - Martial arraignment was held on 8 Sep 2008 with the trial commence ment occurring on 24 Oct 2008. On 12 Nov 2008, the Applicant was found g uilty at trial and sentenced to a reduction in rank to E-4/Corporal and confinement for 89 days (with all confinement in excess of 60 days later being deferred ). The military judge did not award a punitive discharge . The Applicant’s c ommand subsequently processed him for administrative separation. When notified of a dministrative separation processing using the procedure on 10 Dec 2008 , the Applicant elected to exercise his rights to consult with a qualified counsel and submit ted a written statement to the Separation Authority requesting clemency (dated 23 Dec 2008). After review of all the facts and circumstances surrounding the Applicant’s misconduct, the significant stressors experienced in the Applicant and his family’s personal life (related to events and circumstances unforeseen and beyond his control), while taking into account his previous outstanding record of service to the Marine Corps ( that included three combat deployments) and his in-service diagnosis of PTSD and Traumatic Brain Injury (TBI), the Applicant’s Commanding Officer recommended that the Applicant receive a General (Under Honorable Conditions) discharge so that he may be afforded most, if not all, of the veteran’s benefits normally earned as a result of an Honorable discharge from military service. After review of the Applicant’s entire record of service, t he Separation Authority concurred with the Applicant’s Commanding Officer and 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 subsequently discharged on 12 Feb 2009 , as directed.

: (Decisional) ( ) . The Applicant contends that his misconduct of record was the result of stress from depression and anxiety related to PTSD. While t he Applicant may feel the effects of TBI and/or PTSD were the underlying cause of his misconduct, the NDRB determined that the available evidence d id not support the contention that he was not fully responsible for his actions. The record clearly reflects his misconduct was willful and demonstrated he was unfit for further service. The evidence of record documents that t he Applicant failed to report violations of the Depot SOP that he observed as a junior Drill Instructor as was clearly and knowingly required of him to do so. Moreover, the record further documents that he also participated in and instigated a series of hazing and physical abuse incidents , which he knew were in direct violation of the rules and regulations governing the conduct of recruit training. These rules were well-known to the Applicant and a primary focus during the 11 weeks of intense training he received at Drill Instructor School from 2 October through 19 December 2007. Similar incidents of misconduct by former Drill Instructors (violations of UCMJ Articles 92 and 128 ) normally are adjudicated via S pecial C ourt- M artial and result in a B ad C onduct D ischarge or, at minimum, an administrative discharge Under Other Than Honorable Conditions. After detailed analysis and consideration of the facts and circumstances unique to the Applicant’s case, and the testimony of record provided during the hearing, the NDRB determined that the Applicant did have documented in-service diagnoses of PTSD and TBI, but that he was still responsible for his actions. Further more , a review of the records indicates the Applicant was previously granted clemency by the military judge at trial by S pecial C ourt- M artial in not awarding the Applicant a BCD, and then again by the Applicant’s chain of command when recommending a General (Under Honorable Conditions) characterization of service upon administrative discharge from the Marine Corps. Accordingly, the NDRB found that the Applicant’s discharge was proper and equitable at the time of his discharge and that this issue did not provide a basis for which any further relief was warranted . Accordingly, relief, as requested, is 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 was an aberration. However, there is no law or regulation that provides that 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 in question. The Applicant provided transcripts, witness statements , and a lengthy and detailed testimony as evidence of post-service accomplishments. His efforts to improve his life are commendable and were noted by the NDRB members. However, post-service achievements alone do not guarantee an upgrade from an unfavorable discharge , as each discharge is reviewed by the Board on a case-by-case basis with regard to propriety and equity of the discharge. After considering the Applicant’s post-service achievements, his outstanding record of service, and the facts and circumstances surrounding the misconduct for which he was separated , the NDRB determined that the characterization of service awarded at the time of his separation contained considerable clemency and therefore 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 , documentary and testimonial evidence provided by the Applicant and the witness during the personal appearance hearing, and the administrative separation process, the NDRB determined that the discharge was proper and equitable at the time of his discharge. Therefore, the awarded characterization of service shall GENERAL (UNDER HONORABLE CONDITIONS) and the narrative reason for separation shall remain . 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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