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USMC | DRB | 2012_Marine | MD1200787
Original file (MD1200787.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20120222
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)       20010421 - 20010912     Active:   20010913 - 20050710 HON
                                    20050711 - 20070723 HON
Period of Service Under Review:
Date of Current Enlistment: 20070724     Age at Enlistment:
Period of E nlistment : Years 9 Months
Date of Discharge: 20110512      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 18 D a y ( s )
Education Level:        AFQT: 70
MOS: 3051
Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle Pistol (3) ( w/ bronze star) MUC MM CoC ( 4 )

Periods of CONF :

NJP:
- 20100604 :       Article (Failure to obey order or regulation , 2 specifications )
                  Specification 1: Violated a MPO by having contact with the protect ed person , 20100513
                  Specification 2: Violated a MPO by having contact with the protected person, 20100514
         Awarded: (to E-4) Suspended: (suspend 6 months)

- 20110325 :      Article (Absence without leave, 2 specifications )
         Specification 1: Failed to go to appointed place of duty, Unit Property Office, 0720 on 20110310
         Specification 2: Failed to go to appointed place of duty, Company PT, 0615 on 20110323
         Awarded: Suspended: (suspend 6 months)

SCM:              SPCM:    CC:

CIVIL ARREST:
- 20100401 :      Charges: Assault with a deadly weapon; communicating threats; carrying a concealed weapon. [Extracted from Counseling Warning dated 20100427]

Retention Warning Counseling :

- 20091204 :       For on 20091104 a Case Review Committee (CRC) from the Famil y Advocacy Program found that a physical child abuse incident which occurred on or about 20090331 was substantiated at a Level 5, and determined the risk of another such occurrence is high. A level 5 finding includes: Serious life-threatening use of non-accidental physical force and/or more than one occurrence of serious injury requiring medical in tervention within a year. As your command, it is our duty to hold you accountable for your actions in
        
         order to protect the victim who would be vulnerable to ongoing abuse, and preserve the integrity of the Marine Corps. You are hereby counseled that your actions which resulted in a forum such as this incident, or even actions which may be perceived to result as physical abuse to your family members will not be tolerated.

- 20091210 :       For frequent violation of the UCMJ, on 20091208 you were listed on unauthorized absence status from Camp Johnson Guard force for approximately five hours. Conduct of this type will not be tolerated.

- 20100205 :       For misconduct and restriction place on promotion. Specifically, you were given a citation by civil authorities of DWI on 3 October 2009, which means that you will not be eligible for promotion until you have completed all court appearances or if you have been exonerated from all charges associated with this citation of DWI issued to you. You must clearly understand that driving while intoxicated and abuse of alcohol will not be tolerated. As a Sergeant of Marines you must set the example for others to emulate.

- 20100 42 1 : F or in the hands of civilian authorities and failure to obey orders. You have failed to correct your deficiencies or use sound judgment. Your attitude and character are not conducive to your years of service or rank. You have begun to display a pattern of anger and misconduct as a Non Commissioned Officer. On 1 April 2010, you were placed IHCA for assault with a deadly weapon; communicating threats; and carrying a concealed weapon. You failed to inform your chain of command on numerous occasions dealing with misconduct. You have placed yourself into combative situations when conducting business with your spouse and have given the chain of command a concern for your safety as well as others. A military protective order will be put into place to prevent further agitation of any further situations between you and your spouse.

- 20100603 : For second substantiated offense of level III or higher. The Case Review Committee (CRC) findings held on 20 1 00526 were substantiated at level IV for physical abuse against your wife and you were considered to be a treatment failure. Per the results of the review board it is by MCO P1700.2B (paragraph 5003.9) mandatory processing for administrative separation is required. You will receive an entry into your FITREP under derogatory material (section 6b) as required per MCO 1610.7E (paragraph 4003) and MCO P1700.24B (paragraph 5003.7). The risk between your spouse and yourself is considered t o be high. Your actions displayed a lack of responsibility and total disregard for the health and well being of your spouse and children. This totally unsatisfactory behavior will not be tolerated. You are expected to display the Corps values of honor, courage, and commitment in all respects to include integrity, responsibility and accountability.

- 20100604: For your NJP this date for VUCMJ Article 92. On two separate occasions you violated a n MPO issued by myself.

Administrative Corrections to the Applicant’s DD 214

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

          “ CONTINUOUS HONORABLE ACTIVE SERVICE FROM 010913 UNTIL 070723 ”
         “ ”
         “ MARCORPSEPMAN PAR 6210.3 ”
         “ MISCONDUCT ”
        
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 :        

Pertinent Regulation/Law

 A. Paragraph 6210, MISCONDUCT , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F), 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 .



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

Applicant’s Issues

 1.       Applicant contends his A dministrative S eparation B oard considered evidence that was not presented by the trial or defense counsels.
2.       Applicant contends the misconduct for which he was separated could have been prevented if he had been properly treated for depression, anxiety, and Post-Traumatic Stress Disorder (PTSD).

Decision

 Date: 20 1 2 0 8 08            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, 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 Applicant deployed twice to Iraq in support of combat operations for Operation Iraqi Freedom.

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 standards of equity and propriety. The Applicant’s record of service included 6105 counseling retention warnings and for o f the Uniform Code of Military Justice (UCMJ): Article 86 ( Absence without leave , 2 specifications: Failed to go to appointed place of duty, the unit property office, 0720 on 10 March 2011 and Company PT, 0615 on 23 March 2011) , Article 92 ( Failure to obey an order or regulation , 2 specifications: Violated a Military Protective Order (MPO) from his Commanding Officer, on 13 May 2012 and v iolated an MPO on 14 May 2010). The record also indicated the Applicant was arrested by civil authorities on 1 April 2010 for assault with a deadly weapon, communicating threats, and carrying a concealed weapon. There was no evidence of trial by courts-martial. Based on the repeated offenses committed by the Applicant, his command administratively processed him for separation. When notified of a dministrative separation processing using the procedure on 10 November 2010 , the Applicant exercised his rights to consult with a qualified counsel and request an A dministrative S eparation B oard . Upon completion of the A dministrative S eparation B oard proceedings on 1 April 2011, the Senior Member of the Board forwarded the following finding s and recommendations to the Convening Authority: (By 3-0 vote) via a preponderance of the evidence, the Applicant commi t ted L evel III or higher spousal abuse and violated UCMJ Article 86 (UA) and Article 92 (Violated an MPO on two occasions); (By 3-0 vote) the Applicant should be separated from the Marine Corps, without suspension of the separation; (By 3-0 vote) the Applicant should receive an Under Other Than Honorable Conditions characterization of service; (By majority vote) the Applicant should not be transferred to the Individual Ready Reserve. On 5 May 2011, the Separation Authority directed that the Applicant be separated from the Marine Corps with an Under Other Than Honorable Conditions characterization due to Pattern of Misconduct. In his endorsement, he stated , “I certify the respondent has combat service and has been diagnosed with post-traumatic stress disorder. However, he has not been diagnosed with traumatic brain injury. Even though individuals diagnosed with post-traumatic stress disorder exhibit symptoms of impulsiveness and reckless behavior, the diagnosis itself does not absolve the respondent of responsibility for his actions . ”





: (Decisional) ( ) . The Applicant contends his A dministrative S eparation B oard considered evidence that was not presented by the trial or defense counsel s . The NDRB identified the Applicant’s Defense C ounsel ’s letter of deficiency within the service records that alleged the Admin istrative Separation Board improperly considered evidence that had not been presented by the government r ecorder or defense counsel representatives. This allegation was based on a post- A dministrative S eparation B oard conversation the Applicant had with a member of the Administrative Separation Board, a Gunnery Sergeant who had voiced that the Applicant may have received a recommendation for a General (Under Honorable Conditions) discharge if the personal weapon inv olved in his civil arrest had not been illegal . ( The weapon was not illegal ; it was legally purchased in 2008 , but the Applicant was charged with carrying a concealed weapon) . In the Separation Authority’s (Commanding General, Training Command) Decision Letter, dated 5 May 2011, he addressed the allegation stating , “…Based upon a review of the administrative separation board, the allegation in the notification and the basis for separation are substantiated by a preponderance of the evidence. Further, I have reviewed the letter of deficiency submitted by the respondent, and I find it lacks merit. Upon further inquiry , it was determined that the member in question only considered evidence that was properly presented before the board. The respondent will be separated from the U.S. Marine Corps with an Under Other Than Honorable discharge by reason of misconduct due to pattern of misconduct . ” After careful consideration of the available records, and with no significant evidence submitted by the Applicant to rebut or otherwise question the presumption of regularity in this case, the NDRB determined this issue to be without merit and , therefore, did not provide a basis for which relief cou ld be granted. Relief denied.

: (Decisional) ( ) . The Applicant contends the misconduct for which he was separated could have been prevented if he had been properly treated for depression, anxiety, and PTSD. The NDRB conducted a detailed review of the Applicant’s service records to determine whether the Applicant’s discharge met the pertinent standards for propriety and equity. 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 medical documentation within the Applicant’s service and medical records indicating he was being evaluated and treated for Major Depressive Disorder, Recurrent, Severe, without psychotic features. The documentation also indicated the Applicant ha d symptoms of PTSD. Although he may feel depression, anxiety or symptoms related to PTSD may have contributed to the misconduct for which he was separated, the record clearly reflects his misconduct was willful and demonstrated he was unfit for further service. The evidence of record did not show, nor did the Applicant submit evidence to the NDRB to show, that he was either not responsible for his conduct or that he should not be held accountable for his actions. The NDRB determined that his symptoms of PTSD did not mitigate his misconduct.

Per the Marine Corps Separation and Retirement Manual, w hen a service has been honest and faithful, it is appropriate to characterize that service under H onorable 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 outweigh the positive aspects of the member’s service record. An Under Other Than Honorable Conditions discharge is warranted when a Marine commits or omits an act that constitutes a significant departure from the conduct expected from a member of the Naval Service. 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 and length of service, and falls short of w hat is required for an upgrade in the characterization of service. Relief denied.

The U.S. Department of Veterans Affairs (VA) has announced special access to combat veterans discharged under other than dishonorable conditions. The VA determines the eligibility for enrollment independent of the Applicant’s characterization of service as determined by the Navy. Effective 28 January 2008, combat veterans discharged from active duty on or after 28 January 2003 are eligible for combat-veteran enhanced eligibility and enrollment placement into Priority Group 6 (unless eligible for higher enrollment Priority Group placement) for five years after discharge. The Applicant, as a combat veteran, is encouraged to contact the VA for more information at or http://www.ptsd.va.gov/public/pages/help-for-veterans-with-ptsd.asp and http://www.va.gov/healthbenefits/vhbh/ . Additionally, support is available by phone at: 1-877-222-VETS (8387 ).
Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and the administrative separation process, the Board found Therefore, the awarded characterization of service shall 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), 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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