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USMC | DRB | 2012_Marine | MD1200677
Original file (MD1200677.rtf) Auto-classification: Denied
CORRECTED DECISION

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20120131
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MARCORSEPMAN

Applicant’s Request:      Characterization change to:
         Narrative Reason change to: REQUESTED (COG)

Summary of Service

Prior Service:
Inactive:         NONE              Active:            19981119 - 20021003
                                             20021004 - 20060306

Period of Service Under Review:
Date of Current Enlistment: 20060307     Age at Enlistment: 26
Period of E nlistment : Years 9 Months
Date of Discharge: 20090403      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 27 D a y ( s )
Education Level:        AFQT: 33
MOS: 0621 / 0629 / 8023 / 0681
Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle Pistol (3) JSCM (with Combat “V”) (4) JMUA (2) LoA (3) MM (2) CoC (2) BPI

Periods of UA / CONF :

NJP:     SCM:              CC:      Retention Warning Counseling :

SPCM:

- 20090 2 13 :       Art icle (Failure to obey order or regulation, 2 specifications )
         Art icle (General A rticle - A dultery, 2 specifications )
         Sentence : RIR (to E-4)
         Pre-trial agreement: Punitive discharge will be suspended for 12 months from the date of the convening authority’s actions, at which time, unless sooner vacated, the suspended punitive discharge will be remitted without further action.














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. Paragraph 6210, MISCONDUCT of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective
1 September 2001 until Present.

 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 134 .


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

Applicant’s Issues

 1.       Applicant contends his discharge was inequitable due to P ost-Traumatic Stress Disorder (P TSD ) and S tage III cancer diagnos e s and treatment.
2.       Applicant contends his post-service achievements warrant consideration for a discharge upgrade.

Decision

Date: 20 1 2 0 824            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 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. A review of the Applicant’s service record reveals that he deployed in support of Operation Iraqi Freedom and is a recipient of the Combat Action Ribbon and a Navy and Marine Corps Achievement Medal with Combat “V”.

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 complete d a thorough review of the circumstances that led to his discharge and the discharge process to ensure his discharge met the pertinent sta ndards of equity and propriety. The Applicant’s record of service during the current enlistment did not include an y 6105 counseling retention warnings or commanding officer nonjudicial punishment (NJP). The record did reflect for of the Uniform Code of Military Justice ( UCMJ ) : Article 92 ( Failure to obey an order or regulation , fraternization, 2 specifications: Between September 2007 and October 2007, fraternized with a female Corporal, by wrongfully engaging in activity that was unduly familiar and did not respect the differences in grade or rank, calling into question the senior’s objectivity, undermining his authority, and compromising the chain of command; and between November 2007 and December 2007 fraternized with a different female Corporal, by wrongfully engaging in activity that was unduly familiar and did not respect the differences in grade or rank, calling into question the senior’s objectivity, undermining his authority, and compromising the chain of command ) and Article 134 (General Article - Adultery, 2 specifications: as a married man, between September 2007 and October 2007, on diverse occasions, wrongfully have sexual intercourse with a Corporal, a woman not his wife; and between November 2007 and December 2007 ; and on diverse occasions, wrongfully have sexual intercourse with a different Corporal, a woman not his wife) . Based on the serious and repeated offenses committed by the Applicant, his command referred him for tria l by S pecial C ourt- M artial. Upon conclusion of trial proceedings on 13 February 2009, the Applicant pled and was found guilty of violating UCMJ Article 92 (Fraternization) and Article 134 (Adultery). Per the pre-trial agreement (PTA) signed on 7 January 2009 , the Convening Authority suspended the B ad Conduct punitive discharge awarded by the military judge for a period of 12 months. On 3 March 2009, the Applicant’s command initiated processing for administrative separation from the Marine Corps . When notified of a dministrative separation processing using the procedure on 3 March 2009 , the Applicant exercised his right to consult with a qualified counsel, but waived his rights to submit a written statement and request an administrative separation board . On 30 March 2009, the Separation Authority directed that he be separated from the Marine Corps with an Under Other Than Honorable Conditions discharge due to Misconduct (Commission of a Serious Offense). The Applicant was discharged on 3 April 2009 as directed.







: (Decisional) ( ) . The Applicant contends his discharge was inequitable due to P TSD and S tage III cancer diagnos e s and treatment. Despite a service member’s prior record of service, certain serious offenses warrant separation from the Naval Service to maintain good order and discipline; violation of UCMJ Articles 92 and 134 meet s this standard. As a Staff Noncommissioned O fficer of Marines, the Applicant was fully aware of the high standards of personal and professional conduct expected from a leader of Marines. The record at the time of his discharge clearly reflected his willful misconduct and demonstrated he was unfit for further service. While the NDRB recognizes the tremendous stress the Applicant was under as a result of his recurring cancer treatments, PTSD, and divorce, t he Applicant was responsible for his conduct and was accordingly held accountable for his actions. The NDRB determined that PTSD neither caused nor mitigated his conduct. The Applicant’s conduct, which forms the primary basis for determining the character of service, reflects the Applicant’s willful failure to meet the requirements of conduct expected of all Marines, especially considering his grade , experience, and length of service, and falls short of providing a basis for which relief could be granted. Relief denied.

: (Decisional) ( ) . The Applicant contends his post-service achievements warrant consideration for a discharge upgrade. The NDRB considers post-service conduct in order to determine if the misconduct committed during active duty was indicative of the Applicant ’ s character or an aberration. However, there is no law or regulation that provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question. The Applicant provided significant, credible evidence to include a personal statement, commendatory documentation, character reference statements, treatment and rehabilitation documentation, community service, and education and training verification as evidence of his post-service accomplishments. The NDRB noted the significant efforts the Applicant has made to improve his life . After considering the facts and circumstances surrounding the Applicant’s misconduct, his exemplary record of in-service performance, medical record diagnoses and treatment, personal testimony, and significant post-service documentation, the Board determined, via 3-2 split vote, that partial relief is warranted based on equitable grounds. Accordingly, the awarded characterization of service shall change to General (Under Honorable Conditions), but the narrative reason for separation shall remain Misconduct . Partial relief warranted.
Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, S pecial C ourt -M artial findings and sentence, and the administrative separation process, the Board found the discharge was proper and equitable at the time of his discharge. However, due to significant in-service and post-service documentary evidence and personal testimony, the Board determined the awarded characterization of service shall but the narrative reason for separation shall remain . 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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