Upgrade.Vet

USMC | DRB | 2012_Marine | MD1200883

Original file (MD1200883.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20120306

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)       20070430 - 20070507     Active:

Period of Service Under Review:
Date of Current Enlistment: 20070508     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20100825      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 18 D a y ( s )
Education Level:        AFQT: 71
MOS: 0331
Proficiency/Conduct M arks (# of occasions): / )         Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle , Pistol , ACM w/1 Star , CAR, , , ,

NJP:     SPCM:    CC:

SCM:

- 20100708 :       Art icle (Absence without leave, 2 specifications )
         Specification 1: 20080102-20080115 ( 14 days ) - terminated by surrender
         Specification 2: 20090428-20100612 ( 410 days ) - terminated by apprehension
         Sentence Adjudged :
         C onvening A uthority Action: ( 20100712 ) The sentence is approved and ordered executed. Credited 3 days of pretrial confinement. To be restricted to the limits of place of mess, duty, billet and worship and the most direct route to and from without suspension from duty for a period of 30 days.

Retention Warning Counseling :

- 20080901 :       For unauthorized absence. On 20080102 you failed to return from Christmas leave, furthermore you did not return until two weeks later.

Administrative Corrections to the Applicant’s DD 214

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

         “ (14) 080102-080115; (410) 090428-100612 ”

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. 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 86 ( A bsence greater than 30 days) .

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 an upgrade to facilitate access to Department of Veterans Affairs (VA) health benefits for his Post - Tra umatic Stress Disorder (PTSD).
2. T he 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.

Decision

Date: 20 1 2 0510 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 suffering from PTSD directly related to his combat service in Afghanistan . As such, in accordance with U.S. Code, Title 10, Section 1553 (d) (1), the NDRB 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 a combat deployment as a n infantry machine gunner in Nowzad district of the Helmand Province in Afghanistan (April - December 2008) conducting direct combat operations in support of Operation E nduring Freedom . The military service record further documents that he was awarded the Afghanistan Campaign Medal for his efforts while deployed in a designated combat zone and received the Combat Action Ribbon for his actions while engaged in direct combat operations against enemy forces .

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 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 Applicant identified one decisional issue for the NDRB’s consideration related to the equity of the characterization of his service; 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’s enlistment record reflects entry into military service at age 28 with waiver s to enlistment and induction standards for pre-service illegal drug use (marijuana) , a DUI conviction, and a B ureau of Medicine medical waiver related to elbow surgeries from a period of playing professional baseball . The highest rank achieved by the Applicant during his enlistment was E- 3 / Lance Corporal . The Applicant’s record of service includes one 6105 retention-counseling warning and one S ummary C ourt -M artial for violations of the Uniform Code of Military Justice (UCMJ). The Applicant was found guilty of violating Article 86 (Absence without leave, 200 80102 - 200 80115 (14 days - terminated by surrender ) and unauthorized absence 200 90428 - 20100612 ( 410 days - terminated by apprehension by civilian law enforcement personnel). During the second period of unauthorized absence, the Applicant was dropped from his unit ’s rol l s after 30 days of continued absence and was declared a Deserter; a DD Form 553 (Deserter/Absentee Wanted by the Armed Forces) was issued to Federal, State, and local law enforcement agencies seeking his apprehension and return to military custody. Following the Summary C ourt -M artial, the Applicant was notified of pending administrative separation due to Misconduct ( Commission of a Serious Offense ) in accordance with paragraph 6210.6 of the Marine Corps Separation and Retirement Manual (MARCORSEPMAN). T he Applicant was notified of separation for the above reasons and was further advised that the least favorable characterization of service the Applicant could receive was Under Other Than Honorable Conditions and that is what the command was recommending. The Applicant elected to wave his right to consult with qualified legal counsel, waived his right to an administrative hearing board, and waived his right to submit a statement to the Separation Authority. T he Separation Authority reviewed the chain of command’s recommendation for separation and determined that a preponderance of the evidence supported separation pursuant to paragraph 6210.6 (Misconduct - Commission of a Serious Offense) . The Separation Authority directed that the Applicant receive an Under Other Than Honorable Conditions characterization of service based on the nature of the misconduct and the type of discharge and that he be assigned a re-entry code of RE-4 (not recommended for reenlistment).
Issue 1 : ( Nondecisional Issue) The Applicant seeks an upgrade to facilitate access to VA benefits. 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 wh ich the NDRB can grant relief. The NDRB cannot grant a ch ange based solely on this issue, however, the Applicant should be aware that the VA has announced special VA enrollment access for PTSD and mental health treatment to combat veterans discharged under other than dishonorable conditions (i.e., any characterization greater than a dishonorable discharge) . Effective Jan. 28, 2008, combat veterans discharged from active duty on or after Jan. 28, 2003 are eligible for combat veteran enhanced eligibility and enrollment placement into Priority Group 6 (unless eligible for higher enrollment Priority Group placement) for 5 years post discharge for PTSD treatment . Additionally, the VA determines the eligibility for enrollment in its programs - independent of the Applicant’s characterization of service as determined by the Marine Corps. The Applicant, as a combat veteran, is encouraged to contact his local VA affairs representative for more information and may request a review of service and determination of benefits from the VA. Alternately, he may call 1-877-222-8387 or visit the following website for more information: http://www4.va.gov/healtheligibility/Library/pubs/CombatVet/CombatVet.pdf .

Issue 2 : (Decisional) ( ) . The Applicant contends that his misconduct of record was the result of stress from depression and anxiety related to 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 Under Other Than Honorable Conditions, but characterization as General (Under Honorable Conditions) may be warranted , in some circumstances. Moreover, despite a Marine’s prior record of service, certain serious offenses warrant separation from the Naval Service in order to maintain the good order and discipline of the service . 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. Unauthorized absence greater than 30 days is a serious offense per the UCMJ , punishable by a punitive discharge and confinement, if adjudicated by a S pecial or G eneral C ourt- M artial. The record of service documents that the A pplicant absented himself from his unit, without proper authority, and did remain absent for 410 days and that the absence was aggravated by the fact that the return to military custody was the result of his apprehension by civilian law enforcement personnel on non-related criminal charges. The Separation Authority determined that a preponderance of the evidence presented 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 ing 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 all records of medical treatment, both active duty and post-service, from the VA. The records received from the VA failed to document any request for evaluation, any diagnosis, or any findings of PTSD or other mental health concerns. Moreover, the Applicant did not provide any evidence of a diagnosis of PTSD from any other private mental health treatment provider to document his claim. The NDRB found no evidence in the record of any indications of, or diagnosis for, P TSD . Additionally, there is no evidence in either the Applicant’s service record, or the documentation he provided, that demonstrated any problems or symptoms manifesting during his enlistment from his service in Afghanistan . Furthermore, the Applicant’s record does not document any attempts to seek help for any combat stress - related symptoms while in service. Lacking any evidence of PTSD, t he NDRB is unable to establish this contention as a basis for mitigation or consideration as an extenuating circumstance.

Characterization of service at discharge is recognition of a Marine’s performance and conduct throughout a period of enlistment and is not necessarily dependent upon the narrative reason for separation. When the quality of a member’s service has met the standards of accepted 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, an Under Other Than Honorable Conditions characterization of service 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 S ervice. Given the facts of the record and the information provided by the Applicant, the NDRB determined that the Applicant’s conduct involv ed one or more acts or omissions that constituted a significant departure for the conduct expected of a Marine and d id outweigh the overall positive aspects of his record , to include his combat service and letters from fellow Marines attesting to his service . As such, given the facts and circumstances unique to this case, the NDRB determined that the discharge was proper and equitable as issued and that relief based on equitable grounds is not warranted. Relief denied.

Summary : After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and discharge process, the NDRB determined that Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain IN LIEU OF TRIAL BY COURT MARTIAL. 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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USMC | DRB | 2012_Marine | MD1200883

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