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USMC | DRB | 2012_Marine | MD1200663
Original file (MD1200663.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20120127
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)       20070409 - 20070716     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20070717     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 2 0110714      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 28 D a y ( s )
Education Level:        AFQT: 41
MOS: 6046
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle (3) Pistol A MSF (3) ACM (2) (3) MUC LoA (3) NATO -Medal ISAF Afghanistan LoC

Periods of UA / CONF :

NJP:

- 20080421 :       Article (Drunken or reckless driving)
         Article (Failure to obey order or regulation, consume alcohol while under the legal drinking age)
         Awarded: Suspended:

SCM:

- 20110608 :       Art icle (Failure to obey order or regulation)
         Article 111 (Drunken or reckless driving)
         Article 112a (Wrongful use, possession, etc., of controlled substance , 4 specifications )
          Specification 1: Possession of Spice
         Specification 2: Possession of Oxycodone
         Specification 3: Introduce 10 pills of Oxycodone onto a vessel, aircraft, vehicle, or installation used by the armed forces
          Specification 4: Introduce some amount of Spice onto a vessel, aircraft, vehicle, or installation used by the armed forces
          Article 128 (Assault)
         Sentence :

SPCM: CC:





Retention Warning Counseling :

- 20080421 :       For your violation of A rticle s 111 and 92 of the UCMJ.

- 20090427 :       For having his driver’s license suspended on base and in the state of North Carolina due to a DUI charge received in March of 2008. SNM was informed he is not allowed to drive any vehicle until all legal action has been completed and documentation of reinstatement of driving privileges has been provided to the command.

- 20101214 :       For being a passenger in a vehicle that was operated by a Marine that was under the influence of alcohol. Your failure to prevent this Marine from driving did result in the apprehension of the Marine for DUI and did endanger the lives of other persons in the vehicl e and on the road at the time.

- 20110608 :       For Summary Court Martial conviction on 20110608 for the following offenses: Violation of Article 92, Article 111, Article 112a, and Article 128.

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. 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 .




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

Applicant’s Issues

 1.        The Applicant contends severe Post - Traumatic Stress Disorder (PTSD), major depression, and anxiety miti gate his misconduct of record.

Decision

Date : 2012 06 25             Location: Washington D.C .        R epresentation :

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

Discussion

The NDRB reviewed the Applicant’s personal statement; the Applicant stated that he was diagnosed with PTSD related to his combat service in Afghanistan. The Applicant’s service record documents completion of a deployment to Afghanistan, conducting combat support operations in support of Operation Enduring Freedom. As a result of the Applicant’s claim 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 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 discharg e if such change is warranted. In reviewing discharges, the Board presumes regularity in the conduct of g overnment al affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Applicant’s record of service included 6105 counseling warnings , for o f the Uniform Code of Military Justice (UCMJ): Article (Failure to obey an order or regulation, ) and Article ( , ) , and Summary Court-Martial for of the UCMJ: Article ( , ) , Article (Drunken operation of a vehicle, ), Article ( , : Spice use , Oxycodone use , introduce oxyodone to a vessel or installation, introduce S pice to a vessel or installation ), and Article ( , ). The Applicant a pre-service drug waiver . Evidence the Applicant acknowledged complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs was not found in the record . Based on the , command administratively processed for separation. Based on the Article 112a violation, processing for administrative separation is mandatory. When notified of administrative separation processing, the Applicant rights to consult with a qualified counsel and request an administrative board. The Applicant exercised h is right to submit a written statement.

: (Decisional) ( ) . The Applicant contends severe PTSD, major depression, and anxiety mitigate his misconduct of record. The record shows the Applicant was diagnosed , while in service, with PTSD that was found to contribute to his actions and behaviors. The record also clearly shows the S eparation A uthority carefully considered these matters in determining characterization of service, found mitigation was in order, and assigned a General (Under Honorable Conditions) characterization of service rather than an Under Other Than Honorable Conditions characterization that would typically have been awarded given the repetitive and serious misconduct committed by the Applicant . As to why he was not given a medical board, Department of Defense regulations provide that disciplinary separation s supersede disability separations . 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. Evidence of record suggests the Applicant was capable of controlling his actions and bears some responsibility for his misconduct. The NDRB determined factors of mitigation were appropriately considered and applied by the S eparation A uthority in this case. The NDRB determined no further mitigation is warranted. Relief denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice, r ecord e ntries, and d ischarge p rocess, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall . 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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