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USMC | DRB | 2012_Marine | MD1200470
Original file (MD1200470.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20120103
Characterization of Service Received:
Narrative Reason for Discharge: RESIGNATION (UNACCEPTABLE CONDUCT)
Authority for Discharge: SECNAVINST 1920.6C (ADMINISTRATIVE SEPARATION OF OFFICER)

Applicant’s Request:      Characterization change to:
         Narrative Reason change to:

Summary of Service

 Prior Service:
 Inactive: USN (ROTC)     20020628 - 20060525     Active: 

Period of Service Under Review:
 Date of Appointment : 20060526     Age:
Years Contracted : Indefinite
Date of Discharge: 20110815       Highest Rank : 1stLt
Length of Service: Year(s) Month(s) 21 D ay(s)
Education Level:         AFQT: 97
Officer’s Fitness reports: Available
Awards and Decorations ( per DD 214):      Rifle Pistol (2) LoA

Periods of UA / CONF :

NJP:

- 20100915 :       Article (Assault)
         Article 133 ( Conduct unbecoming an officer)
         Awarded: PUNITIVE LETTER OF Suspended: [Extracted from CO’s letter dated 20110802]

SCM:     SPCM:    CC:      Retention Warning Counseling :

Administrative Corrections to the Applicant’s DD 214

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

          “ SECNAVINST 1920.6C ”

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 :        


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

Applicant’s Issues

 1.       The Applicant contends Post - Traumatic Stress Disorder (PTSD) was a contributing factor to her misconduct.
2.       The Applicant contends a command climate of sexual harassment and sexual assault existed at her unit that was specifically inequitable to her and contributed to her misconduct.

Decision

 Date: 20 1 2 1128            Location: Washington D.C .         R epresentation :

By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall RESIGNATION (UNACCEPTABLE CONDUCT) .

Discussion

 As a result of the Applicant’s in-service diagnosis of PTSD, in 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 Applicant’s service record documents completion of a deployment to Iraq as the Combat Logistics Battalion 5 adjutant in support of Operation IRAQI FREEDOM 08-2.

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 . T he Board did complete 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 for o f the Uniform Code of Military Justice (UCMJ): Article 128 ( Assault of an enlisted Marine by slapping his face with her open hand ) and Article 133 ( Conduct unbecoming an officer by drunk and disorderly conduct in front of enlisted Marines) . The Applicant requested to resign her commission in lieu of a Board of Inquiry to show cause for retention in the United States Marine Corps. The Assistant Secretary of the Navy (Manpower & Reserve Affairs) approved her request to resign , and she was administratively separated with a characterization of service of General (Under Honorable Conditions) due to Unacceptable Conduct .

: (Decisional) ( ) . The Applicant contends PTSD following her deployment to Iraq was a contributing factor in her alcohol abuse and her lapse in judgment in assaulting an enlisted Marine. The Applicant received an in-service diagnosis of PTSD in February 2011. The incident occurred on 07 August 2010 outside a bar where the Applicant had been drinking while off duty. Evidence at her NJP , held on 10 September 2010, indicated the enlisted Marine had made derogatory and explicit statements that were disrespectful toward the Applicant as an officer. The Applicant contends that because of her diagnosis of PTSD, her ability to exercise proper judgment during the incident was impaired. The Applicant accepted responsibility for the incident at her NJP and pled guilty to assault and conduct unbecoming an officer . Though the Applicant contends PTSD was the underlying cause of her misconduct, the evidence of record did not show that PTSD was a factor at the time or that the Applicant was either not responsible for her conduct or that she should not be held accountable for her actions. After an exhaustive review, the NDRB determined PTSD was not a mitigating factor to her misconduct, and the discharge was proper and equitable. Relief denied.

: (Decisional) ( ) . The Applicant contends a command climate of sexual harassment and sexual assault existed at her unit that was specifically inequitable to her and contributed to her misconduct . The Applicant made allegations that she was sexually harassed by male enlisted and officer members of her command and that she was sexually assaulted twice and on separate occasions by two different male officers at Marine Barracks Washington . The allegations were the subject of a command investigation of sexual harassment , and a Naval Criminal Investigative Service investigation and Article 32 hearing on the charge of rape for one of the officers involved. At the Article 32 hearing, other allegations of possible misconduct by the Applicant were brought up and the Convening Authority determined to require the Applicant to show cause for retention. The Applicant provided detailed rebuttals to the co ntent s of the investigation,

allegations of misconduct, and NJP for violations of Article s 128 and 133. She claims, in her rebuttals and in her Equal Opportunity complaint (dated 19 September 2010), that she was subjected to repeated severe sexual harassment at Marine Barracks Washington and that her work environment there was hostile to her. However, her command determined the Applicant’s misconduct was of such significance as to require administrative or punitive action. The Applicant then voluntarily requested to resign in lieu of administrative action that may have resulted in harsher punishment. The government enjoys a presumption of regularity in the conduct of its affairs. The NDRB determined the government thoroughly investigated the Applicant’s claims at the time and that competent authority exhaustively examined the facts and concluded there was enough evidence of misconduct on the part of the Applicant as to warrant separation. 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. Despite her previous service, t he NDRB determined that factors in the Applicant’s record did present significant negative aspects of her conduct and therefore warranted the characterization of service received at discharge. Relief denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and discharge process, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain RESIGNATION (UNACCEPTABLE CONDUCT) . 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.

Pertinent Regulation/Law

 A. Secretary of the Navy Instruction 1920.6C (ADMINISTRATIVE SEPARATION OF OFFICERS) effective 15 December 2005 until Present establishes policies, standards and procedures for the administrative separation of Navy and Marine Corps officers from the naval service in accordance with Title 10, United States Code and DoD Directive 1332.30 of 14 Mar 97.
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 .


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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