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USMC | DRB | 2012_Marine | MD1200545
Original file (MD1200545.rtf) Auto-classification: Denied
ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20120111
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)       20030825 - 20040712     Active:            20040713 - 20080324

Period of Service Under Review:
Date of Current Enlistment: 20080325     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20100322      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 28 D a y ( s )
Education Level:        AFQT: 52
MOS: 0341
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle , Pistol , , , w/1 Campaign Star , (2 ), , , MM

NJP:

- 20081015 :      Article (Absence without leave , 20080923 - 20080927, 4 days)
         Awarded: Suspended: 35 days

- 20090611 :      Article (Absence without leave, 20090516 - 20090604, 19 days)
         Article (Failure to obey a lawful order or regulation)
         Article (Assault)
          Awarded: Suspended: Suspension vacated 20090708

SCM:     SPCM:    CC:

C IVIL ARREST : 2

- 20090603 :       Offense: Domestic Violence dated May 2009
- 2009 0910:      Offense: Assault and Battery dated August 2009

Retention Warning Counseling :

- 20081007 :      For unauthorized absence ; specifically, absenting yourself from your unit from 2008092 3 to 20080927 (6 days) .

- 20090611 :       For absence from place of duty, failure to obey a lawful general regulation, and assault.




Types of Documents Submitted/reviewed

 Related to Military Service:
         DD 214:            Service/ Medical Record:            Other Records:   
                                             VA chronological record of treatment
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. The Marine Corps Separation and Retirement Manual, (MCO P1900.16F, effective 1 September 2001 until Present,
Paragraph 6210, MISCONDUCT.

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 s 92 and 128.

D. U.S. Code, Title 10, Section 1553 (d) .

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

Applicant’s Issues

 1.       The Applicant seeks to facilitate access to disability benefits for mental health treatment from the Depart ment of Veterans Affairs (VA).
2.       The Applicant contends that his misconduct of record was the result of his inability to properly deal with the depression and anxiety resulting from undiagnosed Post - Traumatic Stress Disorder (PTSD).

Decision

 Date: 20 1 2 0510           Location: Washington D.C .         R epresentation :

By a vote of the Characterization of service shall .
By a vote of the Narrative Reason for discharge shall .

Discussion

 T he Applicant stated that he was suffering from PTSD related to combat service in Iraq. 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 achieve an expedited resolution. The Applicant’s service record documents his honorable completion of a combat deployment as an Infantryman in the Al-Anbar Province of Iraq while conducting combat operations in support of Operation IRAQI FREEDOM (OIF) from Nov 2006 to Mar 2007. The military service record further documents that he received the Combat Action Ribbon for his personal actions while engaged in direct combat operations against enemy forces and the Iraqi Campaign Medal.

T he 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 governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant . The NDRB reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis. If such a review reveals an impropriety or inequity, relief is in order. Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with the standards of discipline of the Naval Service. The Applicant submitted one decisional issue related to the equity of the Applicant’s discharge for the NDRB’s consideration. Additionally, the NDRB completed a thorough review of the circumstances that led to the Applicant’s discharge, and the discharge process, to ensure the discharge met the pertinent standards of both equity and propriety. The Applicant entered military service at age 1 7 (with parental consent) on a four - year enlistment with a guaranteed contract of Infantry Option. The Applicant’s enlistment record reflects his entry into military service with out any waiver s to enlistment and induction standards. The Applicant completed his four-year enlistment honorably and immediately reenlisted for a second four-year service obligation in March 2008 . The Applicant’s record of service documents that he was counseled on two occasions regarding his retention in the service in accordance with paragraph 6105 of the Marine Corps Separations and Retirement Manual (MARCORSEPMAN) . The service record further documents that the Applicant received two nonjudicial punishments for violations of the Uniform Code of Military Justice (UCMJ): Article 86 ( A bsence without leave , 2 specifications) , Article 92 ( F ailure to obey order or regulation) , a nd Article 128 (Assault). Additionally, the Applicant was arrested and charged by civilian authorities for two separate charges of assault: C harge 1 - domestic violence and C harge 2 - assault and battery (bar fight/bouncer). For the assault and battery charge, the Applicant was arrested and place in confinement in the hands of civilian authorities. While incarcerated, the Presiding Judge in the Superior Court ordered the Applicant into the Orange County Combat Veteran Court P rogram after reviewing the case file . The Applicant was ordered into a supervised release program and released from jail and was remanded into the custody of the Department of Veterans Affairs Medical Center for residential inpatient alcohol rehabilitation and PTSD treatment on 30 Sept 2009.

While assigned to the residential treatment facility under court order, t he Applicant was notified - in writing - of the Command’s intent to process him for administrative separation for Misconduct ( Commission of a Serious Offense ) in accordance with paragraph 6210. 6 of the MARCORSEPMAN. The basis for the discharge was the documented charge s for domestic violence. When notified of administrative separation processing using the notification procedure, the Applicant waived right to consult with a qualified legal defense counsel , to request that a board hearing be convened, or to provide a written statement for consideration by the Separation Authority . The Applicant was advised that the least favorable characterization of his service at discharge was U nder O ther T han H onorable C onditions and that characterization was what the Command was recommending he be awarded. As a function of the separation process, the Applicant ’s diagnosis and treatment for PTSD was known and was considered. After review by the Staff Judge Advocate, the Separation Authority determined that the evidence of record was sufficient in law and fact to support the proposed discharge action. He reviewed the chain of command’s recommendations regarding characterization of service. On 22 March 20 10 , the Separation Authority directed the Applicant be discharged with an Under Other Than Honorable Conditions characterization of service for Misconduct ( Ser i ous Offense ) pursuant to paragraph 6210. 6 of the MARCORSEPMAN. He further directed that, upon discharge, the Applicant receive an RE-4 re-entry code (not recommended for reenlistment ) .

Issue 1: (Nondecisional) The Applicant seeks to facilitate access to disability benefits for mental health treatment from the VA. There is no requirement, or law, that grants re-characterization solely on the issue of facilitating access to VA benefits. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing educational opportunities or employment opportunities. Regulations limit the NDRB’s review solely to a determination of the propriety and the equity of a discharge. As such, this issue does not serve to provide a foundation upon which the NDRB can grant relief.

Issue 2: (Decisional) ( ) . The Applicant contends that his misconduct of record was the result of his inability to properly deal with the depression and anxiety resulting from undiagnosed PTSD . Whenever a Marine is involved in misconduct, as described in paragraph 6210.6 of the MARCORSEPMAN, commanders are directed to process the Marine for separation, unless rehabilitation and retention are warranted. The characterization of service for Misconduct normally shall be U nder O ther T han H onorable C onditions, but characterization as G eneral ( U nder H onorable C onditions) may be warranted in some circumstances. Moreover, despite a Marine’s prior record of service, certain serious offenses warrant separation from the N aval S ervice in order to maintain proper order and discipline. The charges specified against the Applicant for prosecution by state authorities were serious offenses per the UCMJ: punishable by a punitive discharge and confinement, if adjudicated by a special or general court-martial. Specific to the Applicant, paragraph 6210.6 of the MARCORSEPMAN provides a basis for separation of a Marine by the commission of a serious military or civilian offense under the following circumstances: (1) when the specific circumstances of the offense warrant separation; and, (2) a punitive discharge would be authorized for the same or a closely related offense under the UCMJ. This provision of the MARCORSEPMAN further specifies that a military or civilian conviction is not required for discharge. The Applicant’s command opted to allow the civilian prosecution to complete its action and, based on a preponderance of the evidence, sought administrative discharge proc edures in the interim. The Separation Authority determined that a preponderance of the evidence presented (State Superior Court indictment) proved the acts or omissions alleged in the notification letter; specifically, that the Applicant had committed misconduct due to the commission of a serious offense. Since the charges and specifications alleged against the Applicant warranted a punitive discharge, the recommendation and process for discharge by administrative separation was proper and was in accordance with the guidance contained in paragraph 6210.6 of the MARCORSEPMAN. Therefore, the NDRB determined that the narrative reason for separation is accurate and relief is not warranted based on issues of propriety.

The NDRB requested and received the Applicant’s service medical record and VA medical treatment records. While in the active military service, the Applicant was diagnosed by appropriately credentialed mental health care providers with alcohol dependence and sever e /chronic PTSD - directly related to his combat service in Iraq . The Applicant ’s record further documents extensive alcohol rehabilitation and intensive inpatient residential treatment for the diagnosed PTSD. After an in - depth review of the Applicant’s service record and his in-service and post-service mental health treatment records, the NDRB determined that the contention of PTSD existing in-service, prior to the misconduct of record, was established. Given the Applicant’s combat deployment history, his in-service mental health issues, the diagnosed PTSD (sever e /chronic ), and the unique issues associated with this individual discharge action, the NDRB determined that the Applicant’s PTSD and associated symptoms were mitigating and contributory factors in his misconduct and that some f orm of relief was warranted. When the quality of a member’s service has met the standards of acceptable conduct and performance of duty for military personnel, it is appropriate to characterize that service under Honorable 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. However, a n Under Other Than Honorable Conditions discharge is warranted when a member engages in conduct involving one or more acts or omissions that constitute a significant departure from the conduct expected of members of the Naval Service. The Applicant’s record clearly documents his acceptable conduct while deployed in a combat zone; for this service, he received numerous awards and accolades and warranted the awarding of an Honorable discharge at the completion of his first enlistment. However, the record of service does not document service so meritorious that it would completely overcome the Applicant’s disregard fo r good order and discipline - which was constituted by acts or omissions that were a significant departure from the conduct expected of service members. Given the facts of the record, a detailed review of the mental health treatment records , and the Applicant’s combat service, the NDRB determined that the Applicant’s conduct, which forms the primary basis for determining the character of his service, was honest and faithful, but that significant negative aspect s of the member’s conduct did still outweigh the overall positive aspect s of his record. As such, given the facts and circumstances unique to this case, the NDRB determined that partial relief was warranted based on equitable grounds. The NDRB voted 5-0 to upgrade the characterization of service at discharge to General (Under Honorable Conditions), but, by a vote of 5-0, that no change to the narrative reason for separation is warranted. Partial relief warranted. Full relief to Honorable was not granted due to the serious nature of the misconduct.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, service record entries, and the discharge process, the NDRB determined that Therefore, the awarded characterization of service shall but 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), 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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