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USMC | DRB | 2012_Marine | MD1201010
Original file (MD1201010.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20120329
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)       20070202 - 200702 19     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20070220     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20091009      H ighest Rank:
Length of Service : Y ea rs M on ths 20 D a ys
Education Level:        AFQT: 33
MOS: 0621
Proficiency/Conduct M arks (# of occasions): 2.3 ( ) / 1.3 ( )               Fitness R eports:

Awards and Decorations ( per DD 214):      LoA

Periods of UA : 20080108 - 20080201, 25 days; 20080220 - 20080529, 100 days; 20080919 - 20080927, 9 days; 20081215 - 20090910, 270 days

NJP:    SCM:    SPCM:   CC:     Retention Warning Counseling :

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) .


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

Applicant’s Issues

 1.       The Applicant contends her discharge was improper and inequitable , because she was diagnosed with Post - Traumatic Stress Disorder ( PTSD ) , chronic mental illness , and major depression while on active duty.
2.       The Applicant contends her misconduct is mitigated by the PTSD she suffered while on active duty as a result of sexual harassment, assault, and rape from superior noncommissioned officers .

Decision

 Date: 20 1 3 0307            Location: Washington D.C .         R epresentation :

By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall .
Discussion

 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. The Board did complete a thorough review of the circumstances that led to discharge and the discharge process to ensure discharge met the pertinent sta ndards of equity and propriety. The Applicant’s record of service included no NAVPERS 1070/613 (Page 13) warnings and no misconduct resulting in non-judicial punishment or court-martial. The Applicant was administratively processed for separation by h er command for violating Uniform Code of Military Justice (UCMJ) Article 86 (Absence without leave - UA on four occasions totaling 404 days). Based on the offense s committed by the Applicant, command administratively processed for separation. When notified of a dministrative separation processing using the procedure, the Applicant waived rights to consult with a qualified counsel, submit a written statement, and request an administrative board .

: (Decisional) ( ) . The Applicant contends her discharge was improper and inequitable, because she was diagnosed with PTSD, chronic mental illness, and major depression while on active duty. After a complete review of the Applicant’s service records and her statement, the NDRB noted that she was diagnosed while in service with non-combat-related PTSD, chronic mental illness, and major depression. However, the NDRB also noted that she was in an unauthorized absence status for 404 days during her 2 ½ years of service. The record also contains extensive documentation from her leadership to accommodate her mental conditions, provide her with treatment, and process her for a favorable medical discharge. Despite disciplinary separations superseding disability separation, her command offered to waive her misconduct so that she could receive a favorable discharge. However, the Applicant continued to go UA repeatedly during separation processing. Finally, after multiple attempts to help the Applicant, her command processed her for administrative separation for Misconduct (Serious Offense) after her last UA period of 270 days. After a thorough review of the records, the NDRB determined her PTSD, chronic mental illness, and major depression did not mitigate her misconduct, and the discharge was warranted, proper, and equitable. Relief denied.

: (Decisional) ( ) . The Applicant contends her misconduct is mitigated by the PTSD she suffered while on active duty as a result of sexual harassment, assault, and rape from superior noncommissioned officers. The records reflect the Applicant was diagnosed with PTSD (Axis I), Major Depressi ve Disorder, Single Episode, Severe (Axis I), and Alcohol Dependence (Axis I), on 11 February 2008 by a Psychiatrist at Naval Medical Center, San Diego. Instead of reporting for her first follow-up appointment with the doctor on 21 February 2008 , she went UA for 100 days. It is clear to the NDRB that the Applicant’s command went to great lengths to accommodate the Applicant in investigating her allegations of sexual assault and getting her medical attention . Before she deserted again on 15 December 2008 , h er command was willing to overlook her past transgression s to get her an honorable medical discharge, and she was in the process of being recommended for the Physical Evaluation Board. Though the Applicant may feel that PTSD was the underlying cause of h er misconduct, the record reflects willful misconduct that demonstrated s he was unfit for further service. The evidence of record did not show that the Applicant was either not responsible for h er conduct or that s he should not be held accountable for h er actions. The NDRB determined her PTSD did not mitigate her misconduct. 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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