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USMC | DRB | 2012_Marine | MD1200418

Original file (MD1200418.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20111215

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)       20070301 - 2 0070311     Active:

Period of Service Under Review:
Date of Current Enlistment: 20070312     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20110311      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 00 D a y ( s )
Education Level:        AFQT: 69
MOS: 0311
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

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

Periods of UA / CONF :

NJP:

- 20091005 :      Article (Failure to obey order or regulation, 2 specifications )
         Specification 1: B y driving 90 mph in a 55 mph zone , 20090911
         Specification 2: B y physically controlling a vehicle while under the influence of alcohol , 20090911
         Awarded: (to E-2) Suspended: (suspend 6 months)
         * Suspended sentence vacated 2010 0125 due to further misconduct

- 2010030 9 :      Article (Failure to obey order or regulation , 3 specifications )
         Specification 1: Operate a motor vehicle while having a suspended license , 20100123
         Specification 2: B y attempting to elude a state law enforcement official , 20100123
         Specification 3: B y driving 90 mph in a 55 mph zone , 20100123
         Awarded: (to E-1) Suspended: (suspend 6 months)

- 20101123 :      Article (Failure to obey order or regulation, 2 specifications )
         Specification 1: Not wearing a seat belt while operating a motor vehicle , 20100911
         Specification 2: Operating a motor vehicle while having a suspended license , 20100911
         Article Physically control a motor vehicle while under the influence of alcohol , 20100911
         Awarded : (60 days) Susp ended:

SCM:     SPCM:    CC:

Retention Warning Counseling :

- 20091005 :       For recent NJP for violation of Art 92. O n or about 11 Sep 09 f ail ed to obey a lawful regulation by traveling 90 mph in a 55 mph zone, and violation of Art 111 by physically controlling a vehicle while under the influence of alcohol.

- 20100307 :       For drunken or reckless operation of a vehicle and evading law enforcement official s in the United States Marine Corps. O n 23 Jan 2010, you were arrested for driving with a suspended drivers license and failure to stop for a police official. When you were trying to elude the police, you dr o ve your vehicle in a reckless manner by driving 90 mph, 35 mph over the posted speed limit of 55 mph. This kind of behavior will not be tolerated.

- 20100927 :       For disobeying lawful orders or regulations in the United States Marine Corps. On 11 Sep 2010, you were stopped by the Kootenai, Idaho Police Department for driving while under the influence of alcohol, you were administered a blood test in which you registered over the legal limit to operate a vehicle. Also you were cited for driving without privileges. This resulted in a citation by Kootenai Police Department. Drinking while driving is a serious offense that can cost your life and/or the lives of others. This incident reflects on your lack of responsibility and will not be tolerated.

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 contends his discharge was improper/inequitable due to P ost-Traumatic Stress Disorder (P TSD ) not being considered as mitigation in his misconduct.

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 diagnosis 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 one decisional issue for the Board ’s consideration . T he Board complete d a thorough review of the circumstances that led to discharge and the discharge process to ensure discharge met the pertinent sta ndards of equity and propriety. The Applicant’s record of service included three 6105 counseling retention warnings and three for o f the Uniform Code of Military Justice (UCMJ): Article 92 ( Failure to obey an order or regulation, 7 specifications: traveling 90 mph in a 55 mph zone, 11 Sep 09; physically controlling a vehicle while under the influence of alcohol, 11 Sep 09; operating a vehicle with a suspended license, 23 Jan 10; eluding a state law enforcement official, 23 Jan 10; driving 90 mph in a 55 mph zone, 23 Jan 10; not wearing a seatbelt while operating a motor vehicle, 11 Sep 10; operating a vehicle with a suspended license, 11 Sep 10 ) . There was no evidence of trial by courts-martial. The record also revealed the Applicant had enlistment waivers for minor traffic offenses and minor non-traffic offenses prior to entering the Marine Corps . Based on the in-service offenses committed by the Applicant, command could have chosen to refer him for trial by court-martial and/or process him for administrative separation. Instead, the Applicant’s command sent him to Level III in-patient rehabilitation (5 Oct-2 Nov 10) for chemical dependency and trauma (childhood and combat) , which he successfully completed. On 7 Dec 10, the R egimental Combat Team (RCT) 8 Surgeon sent a memorandum to the RCT 8 Commanding Officer that stated , “Alcoholism is a known co-morbidity of poorly treated PTSD. This Dx is likely to have contributed to the pattern of behavior for which the SNM is being separated . ” On 20 Dec 10, the Applicant was placed on a six - month period of limited duty (LIMDU) for PTSD counseling/treatment and alcohol reha bilitation program (SARP) after care aboard Camp Lejeune, NC. The Applicant completed SARP c ontinuing c are treatment on 11 Mar 11 and was subsequently discharged at his End of Active Obligated Service with a General (Under Honorable Conditions) discharge due to Completion of Required Active Service.

: (Decisional) ( ) . The Applicant contends his discharge was improper/inequitable due to PTSD not being considered as mitigation in his misconduct. 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 substantial evidence within the Applicant’s service and medical records to support his claim of in-service PTSD diagnosis. However, the Board could find no evidence to support his claim that PTSD was a mitigating factor in his misconduct or that it was not considered in his discharge characterization of service. The NDRB conducted a detailed analysis of the Applicant’s records to determine whether his discharge met the pertinent standards for propriety and equity. After careful review, the Board could find no evidence to support the Applicant’s claim of impropriety or inequity. Based on the Applicant’s repeated misconduct, his command could have referred him for trial by court-martial and/or process him for administrative separation. Instead, the Applicant’s command sent him to Level III in-patient rehabilitation (5 Oct-2 Nov 10) for chemical dependency and trauma (childhood and combat) ,

which he successfully completed. After considering all the facts and circumstances specific to the Applicant’s case , his command placed him on a six - month period of LIMDU to allow him to receive extensive PTSD counseling/treatment and alcohol rehabilitation program a ftercare through his EAOS . The Applicant completed SARP continuing care treatment on 11 Mar 11, and was subsequently discharged at his EAOS with a General (Under Honorable Conditions) discharge due to Completion of Required Active Service. Quite the contrary from being “expeditiously separated,” the Applicant’s command allowed him to remain in the Marine Corps until the end of his enlistment and ensured he received extensive alcohol and PTSD counseling before discharge.

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, if a 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 upon completion of required active service . A review of the Applicant’s service record reveals his enlistment P roficiency and C onduct mark average s w ere 3.8 and 3.8 , respectively, which qualifies the Applicant for a General (Under Honorable Conditions) . Moreover , his record of service reflect s a pattern of inconsistent performance and conduct as evidenced by three 6105 retention warnings and three NJPs (which included evading the police and multiple instances of reckless driving and driving under the influence of alcohol). Based on the Applicant’s enlistment cumulative P ro/ C on mark average , the NDRB determined that the Applicant’s General (Under Honorable Conditions) characterization of service upon completion of required active service was proper and equitable, and in accordance with the applicable orders and directives in effect at the time of his discharge. Accordingly, the Board found 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 completion of required active service disc harge process, the Board found the discharge was proper and equitable. Therefore, the awarded characterization of service shall GENERAL (UNDER HONORABLE CONDITIONS) 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 | MD1200418

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