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USMC | DRB | 2012_Marine | MD1200924
Original file (MD1200924.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20120315
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)       20060715 - 20060724     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20060725     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20091124      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 00 D a y ( s )
Education Level:        AFQT: 70
MOS: 1371
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle (3)

Periods of UA / CONF :

NJP:

- 20070206 :      Article (Failure to obey order or regulation, 2 specifications )
         Specification 1: Consuming alcohol in barracks
         Specification 2: Consuming alcohol under the age of 21
         Awarded: Suspended:

- 20090804 :      Article (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer)
         Article 128 (Assault)
         Article 134 (General A rticle – drunk and disorderly conduct)
          Awarded: Suspended: Suspension vacated 20090807

- 20090807 :       Article (Wrongful use, possession, etc., of controlled substance, to wit: marijuana 112 ng/ml)
         Awarded: Suspended:

SCM:     SPCM:    CC:

Retention Warning Counseling :

- 20070206 :       For pattern of misconduct. Applicant received NJP for violation of UCMJ, violation of Article 92 (2 specifications). Applicant failed to obey an order or regulation by violating MCES BEQ policy by consuming alcohol while under the age of 21 and having alcohol in the BEQ. Applicant’s actions show a serious lack of adherence to moral and ethical principles and judgment.

- 20070221 :       For your alcohol - related incident, specifically, underage drinking on 20070215.


- 20090805 :       For being drunk and disorderly, disrespectful to SNCOs and destruction of government property.

- 20090807 :       For wrongful use, possession, distribution of an illegal substance. Applicant was administered a urinalysis on 20090803 during a Command directed urinalysis. Results of the test came back positive on 20090806 for THC 112 ng/ml.

Administrative Corrections to the Applicant’s DD 214

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

          “ 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. 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 seeks an upgrade for G.I. Bill benefits.
2.       The Applicant contends his P ost- T raumatic S tress D isorder (PTSD) was a mitigating factor in his misconduct.
3.       The Applicant suggests his in-service achievements are worthy of consideration for an upgrade.

Decision


 Date: 20 1 2 0625            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 Iraq. The Applicant’s military service record documents that he is a combat veteran, having served honorably during two combat deployments to Iraq (September 2007 - February 2008 and September 2008 - April 2009) in support of Operation IRAQI FREEDOM. The military service record further documents that he was awarded the Iraqi Campaign Medal , Combat Action Ribbon, and the Purple Heart M edal for his service. The A pplicant also states that he was a victim of an Improvised Explosive Device blast.

As a result of the Applicant’s claim of PTSD and T raumatic Brain Injury , in accordance with U.S. Code, Title 10, 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 provided a copy of his Disability Compensation Awards letter from the U.S. Department of Veterans Affairs (VA), indicating he was assigned a combined 60% disability rating. Decisions reached by the VA to determine if former servicemembers rate certain VA benefits do not affect previous discharge decisions made by the Marine Corps . The criteria used by the VA in determining whether a former servicemember is eligible for benefits are different than that used by the Marine Corps when determining a member’s discharge characterization.
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 governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Board did complete a thorough review of the circumstances that led to discharge and the discharge process to ensure discharge met the pertinent standards of equity and propriety. The Applicant’s record of service included 6105 counseling warnings and for o f the Uniform Code of Military Justice (UCMJ): Article ( Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer , ), Article ( Failure to obey order or regulation , : S pecification 1: consuming alcohol in barracks; S pecification 2: consuming alcohol under the age of 21 ), Article ( Wrongful use, possession, etc., of controlled substance, to wit: marijuana , 112 ng/ml , ), Article ( Assault , ), and Article ( General A rticle – drunk and disorderly conduct , ). The Applicant a pre-service drug waiver for using marijuana prior to entering the Marine Corps, acknowledged complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 3 May 2006. Based on the Article 112a violation, processing for administrative separation is mandatory. When notified of administrative separation processing using the procedure, the Applicant rights to consult with a qualified counsel and submit a written statement . The Applicant was not entitled to an administrative board.


: (Nondecisional) The Applicant seeks an upgrade for G.I. Bill 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 which the NDRB can grant relief.

-3 : (Decisional) ( ) . The Applicant contends his PTSD was a mitigating factor in his misconduct and believes his in-service achievements are worthy of consideration for an upgrade. In determining discharge characterization of service, the Applicant’s conduct forms the primary basis for consideration. The Applicant’s in-service conduct included t hree nonjudicial punishments for m ajor UCMJ infractions to include violation of Article 112a of the UCMJ; this was a willful failure to meet the requirements of his contract honorably. However, the Applicant contends his PTSD was a mitigating factor in his misconduct. The Applicant’s official military service record diagnosis of PTSD, coupled with additional post-service documentation provided by the Applicant, support the Applicant’s contention that his PTSD was a mitigating factor associated with the in-service misconduct. However, d espite a servicemember’s prior record of service, certain serious offenses warrant separation from the to maintain proper order and discipline. Violation of Article 112a is one such offense requiring mandatory processing for administrative separation regardless of grade, combat deployments, awards, performance, or time in service. This usually results in an unfavorable characterization of discharge , such as an Under Other Than Honorable Conditions, or, at a maximum, a punitive discharge and possible confinement if adjudicated and awarded as part of a sentence by a special or general court-martial. The Applicant was found guilty of violation of Article 112a. However, his command did not pursue a punitive discharge but opted instead for the more lenient administrative discharge. Additionally, it is evident from the separation documents that the Applicant’s chain of command took into account his PTSD diagnosis and his in-service heroics in the separation and characterization determination. The Applicant’s commanding officer specifically recommen ded that he receive a General (U nder Honorable Conditions) characterization , which is highly unusual as most Article 112a violations result in an Under Other Than Honorable Conditions characterization of service . The NDRB determined that the Applicant’s PTSD diagnosis and in-service achievements were taken into consideration in determining an equitable characterization of service at discharge and that an upgrade to Honorable, considering his multiple instances of in-service misconduct, 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 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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