Upgrade.Vet

USMC | DRB | 2012_Marine | MD1200416

Original file (MD1200416.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20111213

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)       20030131 - 20030316     Active:          20030317 - 20061005

Period of Service Under Review:
Date of Current Enlistment: 20061006     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20101005      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 00 D a y ( s )
Education Level:        AFQT: 75
MOS: 1391 / 0933
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle (5) (2) (4) (w / c ampaign s tar) (w / c ampaign s tar) KDSM CoA LoA
Periods of UA / CONF :

NJP:     SPCM :             CC:               Retention Warning Counseling :

SCM:
- 20100811 :      Article (Failure to obey order or regulation)
         Article (Adultery, 2 specifications )
         Sentence: RIR (to E-4)

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. Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 1 September 2001 until Present,
Paragraph 1005, DISCHARGE FOR EXPIRATION OF ENLISTMENT OR FULFILLMENT OF SERVICE OBLIGATION .

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 increase employment opportunities.
2.       Applicant contends his discharge was inequitable based on his three O peration Iraqi Freedom (O IF ) deployments and a spouse with mental health instability.
3.       Applicant contends undiagnosed depression and alcoholism warrant consideration for a discharge upgrade.
4.       Applicant contends his discharge was inequitable , because P ost-Traumatic Stress Disorder (P TSD )- related issues/symptoms were not considered.
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

As a result of the Applicant’s contention that he suffers from 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 his discharge and the discharge process to ensure his discharge met the pertinent standards of equity and propriety. The Applicant’s record of service did not include any 6105 counseling retention warnings or commanding officer nonjudicial punishment (NJP). The record did reflect summary court - martial f or violations o f the Uniform Code of Military Justice (UCMJ): Article 92 ( Failure to obey an order or regulation ) and Article 134 ( Adultery, 2 specifications ) . He reached the end of his active obligated service (EAOS) on 5 Oct 2010 and was subsequently discharged with a General (Under Honorable Conditions) discharge due to Completion of Required Active Service.

: (Nondecisional) The Applicant seeks a discharge upgrade to increase employment opportunities. The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities as r egulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.

: (Decisional) ( ) . The Applicant contends his discharge was inequitable based on his three OIF deployments and a spouse with mental health instability. Despite a service member’s prior record of service, certain serious offenses warrant separation from the N aval S ervice in order to maintain good order and discipline; violation of UCMJ Article 92 (Failure to obey an order or regulation) and Article 134 (Adultery) meet this standard. While he may feel his three deployments and spousal mental health issues were the underlying causes for or mitigation of his misconduct, the record clearly reflects his misconduct was willful and demonstrated he was unfit for further service. However, the Applicant’s command did not process him for administrative separation and allowed him to reach his EAOS. Per the Marine Corps Separation and Retirement Manual, a Marine may be awarded a General (Under Honorable Conditions) discharge if a member’s service has been honest and faithful, but significant negative aspects of the member’s conduct or performance outweigh positive aspects of the member’s military record. Additionally , upon completion of required active service, if the member’s average P roficiency marks are below 3.0 and/or average C onduct marks are below 4.0, the Marine can be awarded a General (Under Honorable Conditions) discharge . A review of the Applicant’s service record reveals his current enlistment P roficiency and C onduct mark average s were 4 . 4 and 4 . 4 , respectively, which qualifies the Applicant for a n Honorable discharge. Based on the Applicant’s P ro/ C on mark average upon completion of required active service, the NDRB determined that the Applicant’s discharge, although proper , was inequitable. Accordingly, the Board found th at relief was warranted on the basis of equity. Relief granted.

: (Decisional) ( ) . The Applicant contends undiagnosed depression and alcoholism warrant consideration for a discharge upgrade. The Board conducted an exhaustive review of the records and found no evidence to support , nor did the Applicant provide any evidence to indicate , that he attempted to utilize the numerous services available for service members who undergo personal problems during their enlistment , 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. After careful consideration, the Board determined this issue to be without merit and did not provide a basis for which relief could be granted. Relief denied.

Issue 4 : (Decisional) ( ) . The Applicant contends his discharge was inequitable , because PTSD - related issues/symptoms were not considered. 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 medical diagnosis in the record 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 this was the underlying cause of his misconduct, the record clearly reflects his misconduct was willful and demonstrated he was unfit for further service and reenlistment . 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 a thorough review of the records, and the facts and circumstances unique to this case, the NDRB discerned PTSD was not a mitigating factor in the Applicant’s separation from the Marine Corps. Accordingly, the Board found the Applicant’s discharge was proper (although inequitable; see Item 2 discussion above) per the applicable orders and directives in effect at the time of his separation. Relief denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries and the completion of required active service di scharge process, the Board found the discharge was proper but not equitable at the time of his discharge . Therefore, the awarded characterization of service shall HONORABLE 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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USMC | DRB | 2012_Marine | MD1200416

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