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USMC | DRB | 2012_Marine | MD1200351
Original file (MD1200351.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20111122
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)       20030222 - 20030 4 13     Active:  

Period of Service Under Review:
Date of Current Enlistment: 200304 14     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20060612      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 29 D a y ( s )
Education Level:        AFQT: 41
MOS: 0161
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle (with b ronze s ervice s tar)

Periods of UA/ CONF : UA 20030729 - 2003080 4 (7 days)

NJP:

- 20040218 :      Article (Failure to obey an order or regulation - underage drinking , 20040124 )
         Awarded: (to E-1) RESTR EPD Suspended: (suspend 6 months)
         * Vacated suspended FOP on 20040510 due to further misconduct

- 20040512 :      Article (Failure to obey order or regulation, 3 specifications )
         Specification 1: Wrongfully consuming alcohol under the legal age of 21 , 20040507
         Specification 2: Wrongfully failing to sign out of the liberty logbook , 20040507
         Specification 3: Wrongfully leaving Camp Foster without a liberty buddy , 20040507
         Awarded: CCU (30 days) Suspended:

- 20050120 :      Article (Failure to obey order or regulation - underage drinking , 20050116 )
         Article (Operated POV while under the influence of alcohol , 20050116 )
         Awarded: (to E-1) Suspended: (suspend 6 months)

- 20051205 :      Article (Dereliction in performance of duty - willfully failed to prevent PFC from driving while intoxicated , 20051202 )
         Awarded: (to E-1) Suspended:

SCM:     SPCM:    CC:






Retention Warning Counseling :

- 20030805 :       For unauthorized absence (UA), 1 500, 20030729 to 1900, 20030804 ( 7 days) .

- 20040218 :       For failure to obey a lawful order or regulation, to wit: underage drinking.

- 20040512 :       For violation of Article 92 (3 specifications): Underage drinking, failure to sign out of the liberty log book , and liberty buddy violation.

- 20050120 :       For underage drinking (Art 92) and driving under the influence (Art 111) .

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.       Applicant seeks a discharge upgrade to obtain GI Bill education benefits.
2.       Applicant contends his youth, immaturity , and alcohol abuse led to alcoholism and the miscondu ct for which he was separated.
3.       Applicant contends his post-service achievements warr ant consideration for a discharge upgrade.
4.       Applicant contends P ost-Traumatic Stress Disorder (P TSD ) mitigates the misconduct for which he was separated.

Decision

Date: 20 1 2 0 3 08            Location: Washington D.C .         R epresentation :

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

 As a result of the Applicant’s contention that he suffers from symptoms of PTSD, i n accordance with U.S. Code, Title X, Section 1553 (d)(1), the Naval Discharge Review Board included a member who is a physician, clinical psychologist, or psychiatrist. In accordance with section 1553 (d)(2), the service secretary expedited a final decision and accorded the case sufficient priority to achieve an expedited resolution.

The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and the reason for discharge if such change is warranted. In reviewing discharges, the Board 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 three decisional issues for the Board ’s consideration . T he Board complete d a thorough review of the circumstances that led to his discharge and the discharge process to ensure his discharge met the pertinent standards of equity and propriety. The Applicant’s record of service included 6105 counseling retention warnings and for o f the Uniform Code of Military Justice (UCMJ): Article 92 ( Failure to obey an order or regulation, 6 specifications: underage drinking on 24 Jan 2004, 7 May 2004, and 16 Jan 2005 ; failed to sign out of liberty logbook , 7 May 2004 ; failed to depart base on liberty with a liberty buddy , 7 May 2004 ; and dereliction in the performance of his duties by willfully failing to prevent a PFC from driving a vehicle while under the influence of alcohol , 2 Dec 2005 ), and Article 111 ( Drunk driving , having a BAC .02 under the age of 21 while driving POV, 16 Jan 2005 ). There was no evidence of trial by courts-martial. Based on the repeated offenses committed by the Applicant, his command administratively processed him for separation. When notified of a dministrative separation processing using the procedure on 23 Jan 2006 , the Applicant exercised his rights to submit a written statement and request an administrative separation board. On 25 Jan 2006, the Applicant submitted a request for cancellation of administrative separation proceedings to the convening authority. However, the convening authority denied the request and directed that the administrative board convene on 30 Mar 2006. Upon conclusion of the admin board proceedings, the Senior Member forwarded the b oard’s findings to the convening authority a s follows: (By 3-0 vote) the preponderance of the evidence supports that the Applicant committed the misconduct for which charged; (by 3-0 vote) the Applicant should be separated from the Marine Corps; (by 2-1 vote) the Applicant should receive a General (Under Honorable Conditions) discharge; (by 3-0 vote) the Applicant’s separation from service should not be suspended. On 24 May 2006, the Separation Authority concurred with the administrative board findings and recommendations, and directed that the Applicant be separated from the Marine Corps with a General (Under Honorable Conditions) discharge due to Pattern of Misconduct. The Applicant was discharged on 12 Jun 2006.

: (Nondecisional) The Applicant seeks a discharge upgrade to obtain GI Bill education 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. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities as regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.

: (Decisional) ( ) . The Applicant contends his youth, immaturity , and alcohol abuse led to alcoholism and the misconduct for which he was separated . While he may feel youth and immaturity w ere the underlying cause s of his misconduct, the record clearly reflects his misconduct to be willful and demonstrated he was unfit for further service. The NDRB determined that the Applicant ’ s youth or age was not a mitigating factor in his misconduct . Moreover, t here is no evidence in the record, nor did the Applicant provide any evidence , to indicate he attempted to utilize the numerous services available for service members who undergo personal problems during their enlistment s, such as the Navy Chaplain, Medical or Mental Health professionals, Navy Relief Society, Family Advocacy Programs, or even the Red Cross. The NDRB recognizes that serving in the U.S. Marine Corps is challenging. However, all members of the Naval Services are expected to uphold the high standards of conduct as evidenced in our Core Values of Honor, Courage, and Commitment, regardless of the environment or mission in which assigned. When a Marine’s service has been honest and faithful, it is appropriate to characterize that service under H onorable 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. After careful consideration of all the available evidence, the NDRB determined this issue to be without merit and did not provide a basis for which relief could be granted. Relief 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 an aberration. However, there is no law or regulation, that p rovides 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 of enlistment in question. The Applicant provided a personal statement as evidence of post-service accomplishments. Although his efforts to improve his life may be noteworthy, he failed to provide adequate documentation and evidence on his behalf to support a thorough post-service conduct review . He could have submitted documentation as specified in the Post-Service Conduct paragraph in the Addendum , however, c ompletion of these items alone however, does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case by case basis. Without any additional post-service documentary evidence, the Board determined the awarded characterization of service shall remain General (Under Honorable Conditions). Relief denied.

Issue 4 : (Decisional) ( ) . The Applicant contends PTSD mitigates the misconduct for which he was separated. 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 found no evidence or medical diagnosis in the record s to support the Applicant ’ s claim nor did the Applicant produce any medical diagnosis by competent medical authority to support his claim. While he may feel that PTSD was the underlying cause of his misconduct, the record clearly reflects his misconduct was willful and continuous, and demonstrated he was unfit for further service. The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions . After analysis of and deliberation on the available evidence, the NDRB determined this issue to be without merit and did not provide a basis for which relief could be granted. Relief denied.
Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries and the administrative separation process, the Board found Therefore, the awarded characterization of service shall remain 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 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), 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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