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USMC | DRB | 2012_Marine | MD1200795
Original file (MD1200795.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20120223
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)       20050617 - 20060604     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20060605     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20100106      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 03 D a y ( s )
Education Level:        AFQT: 35
MOS: 3531
Proficiency/Conduct M arks (# of occasions): /   Fitness R eports:

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

Period s of UA : 20080825 - 20090925 (395 days)

NJP:
- 20080305 :       Article (Assault)
         Awarded: Suspended: (suspend 6 months)

- 20091216 :      Article (Absence without leave , 20080825 - 20090925, 395 days )
         Awarded: (to E-3) (60 days) Suspended: (suspend 6 months)

SCM:              SPCM:             CC:

Retention Warning Counseling :

- 20071223 :       For borderline personality disorder. You were evaluated by Mental Health Camp Fallujah Iraq on 20071124 and found to be responsible for your own actions and recommended for expeditious administrative separation by your mental health provider. On 20071221 you initiated a Request Mast to the Battalion Commander requesting to remain in the Marine Corps and the Battalion. The findings of the Request Mast by the Battalion Commander was to halt your administrative separation process pending a second opinion on your condition. Your behavior will be continually monitored by your chain of command. If any signs of potential harm to yourself or others is perceived, non-functional behavior is observed, or a second medical opinion recommends administrative separation, the process for separation will proceed as per MILPERSMAN 1910-122 or other applicable service directives.

- 20080305 :       For recent Company Level NJP for violation of A rticle 128 of the UCMJ held on 20080305.




- 20091216 :       For violation of A rticle 86 of the UCMJ , A bsence without leave , 20080825 to 20090925. Conduct such as this is unacceptable and prejudicial to good order and discipline; this will not be tolerated in the Marine Corps.

Page 11 Counseling: 1

- 20061128:               For assaulting another Marine. Specifically, you heard that another Marine was sending racial jokes to            other Marines. You decided to take matters into your own hands and assaulted a PFC. This is not the              right way to t ake care of situations.

Administrative Corrections to the Applicant’s DD 214

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

          “ (396) 20080825-20090925 ”
        
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 P1900.16E), 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 86 (UA greater than 30 days) and Article 128 (Assault).


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

Applicant’s Issues

 1.       Applicant contends his discharge was inequitable based on his total record of service.
2.       Applicant contends P ost-Traumatic Stress Disorder (P TSD ) led to the misconduct for which he was separated.

Decision

 Date: 20 1 2 0 808            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 to Iraq in support of Operation Iraqi Freedom from 20 July 2007 to 27 February 2008.

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. Although the Applicant’s medical records were unavailable for review, t he Board complete d a thorough review of the available records to determine 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, 25 August 2008 to 25 September 2009, 395 days ) and Article 128 ( Assault, while intoxicated SNM physically assaulted a Corporal that resulted in damage to the Marine’s eye and face, 0200 on 1 March 2008 ) . Based on the offenses committed by the Applicant, his command administratively processed him for separation in accordance with the Marine Corps Separa t ion and Retirement Manual (MARCORSEPMAN) . When notified of a dministrative separation processing using the procedure on 22 December 2009 , the Applicant exercised right to consult with a qualified counsel, but waived his rights to submit a written statement and request an administrative separation board . On 22 December 2009, the Applicant’s Battalion Commander endorsed his administrative separation package, stating: “SNM left his assigned place of duty and responsibility with no intention of coming back or at least until it suited him. SNM turned himself in in order to get on with his life. The BN took great care of him while he was here to include sending him to inpatient SARP at Pt. Loma to help him deal with alcohol abuse issues. The BN also sought to encourage him to stay to serve out the remainder of his original contract (which would have been 5-6 more months). However, he wants to be separated and my assessment is that he no longer maintains the capacity to serve. ” After considering the Applicant’s record of service , the circumstances surrounding his misconduct, and chain of command recommendations, the Separation Authority directed that the Applicant be separated from the Marine Corps with an Under Other Than Honorable Conditions discharge. The Applicant was discharged on 6 January 2010 as directed.

: (Decisional) ( ) . The Applicant contends his discharge was inequitable based on his total record of service. The Board completed 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. Despite a service member’s prior record of service, certain serious offenses w arrant separation from the N aval S er vice in order to maintain good order and discipline ; violation of Article 86 (in excess of 30 days) meets this standard . T he Applicant’s record clearly reflects his willful misconduct and demonstrated he was unfit for further service. The evidence of record does not demonstrate the Applicant was not responsible for his conduct or he should not be held accountable for his actions. The Applicant’s conduct (including assault and 395 day s of UA) , 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 w hat is required for an upgrade in the characterization of service. Relief denied.


: (Decisional) ( ) . The Applicant contends PTSD led to the misconduct for which he was separated. 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 su pport his issue. The NDRB found documentation within the record from the Substance Abuse Rehabilitation Department (SAR D), Point Loma, CA that indicated the Applicant was placed in residential substance abuse treatment for alcohol dependence from 25 September - 3 November 2009. The documentation revealed that the Applicant was diagnosed with AXIS I: Alcohol Dependence; PTSD; and Major Depressive Disorder , and AXIS II: Borderline Personality Disorder while undergoing in-patient rehabilitation treatment. However, the records do not indicate nor does the Applicant submit evidence to the Board to demonstrate that he was not responsible for his actions or that his misconduct was mitigated by the effects of PTSD symptoms. W hile he may feel that this was the underlying cause of his misconduct, the record clearly reflects his misconduct was willful and demonstrated he was unfit for further service. The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions. Accordingly, the NDRB determined this issue did not provide a basis for which relief could be granted. 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 p rocess, 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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