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USMC | DRB | 2012_Marine | MD1201040
Original file (MD1201040.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20120406
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)       20060929 - 20061010     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20061011     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20101103      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 23 D a y ( s )
Education Level:        AFQT: 72
MOS: 0331
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle ACM (2) (2) (2) CoC

Periods of UA :

NJP:

- 20081230 :      Article (Failure to obey order or regulation)
         Article (Drunken or reckless operation of vehicle, aircraft, or vessel)
         Awarded: Suspended: 19 days

SCM:

- 20100805 :      Article ( Wrongful use, possession, etc. of controlled substances, to wit: marijuana 23 ng/ml )
         Sentence: (20100805-20100828, 24 days)

SPCM:    CC:

Retention Warning Counseling :

- 20081230 :       For violation of Articles 111 and 92.

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 :        


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

Applicant’s Issues

 1.       The Applicant seeks an upgrade for service benefits , GI Bill, and the opportunity to possibly re-enlist .
2.       The Applicant contends he was not afforded ample time to adequately prepare for his Administ rative Separation Board (ASB) , and his commanding officer changed his recommendation from General to Other Than Honorable .
3.       The Applicant contends he served honorably and his P ost- T raumatic S tress D isorder (PTSD) and Traumatic Brain Injury (TBI) were mitigating factor s in his misconduct .

Decision

Date: 20 1 2 1128            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 and TBI, 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’s military service record documents that he is a combat veteran who completed deployments to Ramadi, Iraq ( October 2007 - May 2008 ) in support of Operation IRAQI FREEDOM and Helmand Province, Afghanistan (May 2009 - November 2009) in support of Operation ENDURING FREEDOM . The military service record further documents that he was awarded the Iraq Campaign Medal with bronze campaign star , Combat Action Ribbon, and the Afghanistan Campaign M edal with bronze campaign star for his service. The Applicant provided a cop y of his U.S. Department of Veterans Affairs (VA) medical treatment record , indicating he was diagnosed post-service with PTSD and TBI . 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 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 standards of equity and propriety. The Applicant’s record of service included 6105 counseling warning, for o f the Uniform Code of Military Justice (UCMJ): Article ( Failure to obey order or regulation , ) and Article ( Drunken or reckless operation of vehicle, aircraft, or vessel , ) , and for of the UCMJ: Article ( Wrongful use, possession, etc. of controlled substances, to wit: marijuana 23 ng/ml , ). 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 13 September 2006 . Based on the Article 112a violation , processing for administ rative separation is mandatory. When notified of a dministrative separation processing using the procedure, the Applicant rights to consult with a qualified coun sel, submit a written statement , and request an ASB. The Applicant appeared before an ASB on 1 November 2010 , which determined by majority vote that the preponderance of the evidence supported the notification for separation due to Misconduct (Drug Abuse). The ASB further recommended the Applicant should be separated from the Marine Corps with an Under Other Than Honorable Conditions characterization of service (with no suspension). The command and S eparati on Authority agreed with the ASB’s recommendation s and discharged him accordingly.

: (Nondecisional) The Applicant seeks an upgrade for service benefits, GI Bill, and the opportunity to possibly re-enlist. The U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB. The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment, health care access, or educational opportunities. Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.

For re-enlistment, s ince 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 Board for Correction of Naval Records 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.
: (Decisional) ( ) . The Applicant contends he was not afforded ample time to adequately prepare for his ASB, and his commanding officer changed his recommendation from General to Other Than Honorable. On 5 August 2010, t he Applicant was found guilty at a Summary Court-Martial for violating UCMJ Article 112a . Violation of Article 112a is an offense requiring mandatory processing for administrative separation regardless of grade, performance, combat deployments, awards, or time in service. This usually results in an unfavorable characterization of discharge 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 . The records reflect the Applicant’s command notified him of separation proceedings and his rights via a CO’s letter dated 9 August 2010 , with a least favorable characterization of service of U nder O ther T han H onorable C onditions. The Applicant acknowledged and responded via letter dated 11 August 2010 , indicating that he ha d consulted with counsel and that he desired a hearing before an ASB . On or about 28 October 2010 , the Applicant was offered the chance to waive his appearance before the ASB , and in turn his commanding officer would recommend a General ( Under Honorable Condition s) discharge. According to the Applicant’s statement on his DD Form 293, he refused the offer , and his command convened an ASB on 1 November 2010. After a thorough review of the service records, separation proceedings, and timeline of events, the NDRB determined the Applicant received due process and was provided adequate time to prepare for his ASB. The Applicant was properly and equitably discharged Under Other Than Honorable Conditions for Misconduct (Drug Abuse) . Relief denied.

: (Decisional) ( ) . The Applicant contends he served honorably and his PTSD and TBI were mitigating factor s in his misconduct . In determining discharge characterization of service, the Applicant’s conduct forms the primary basis for consideration. The Applicant’s in-service conduct included one nonjudicial punishment for commission of serious offense s (Articles 92 and 111) and a Summary Court-Martial for 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 and TBI were mitigating factor s in his misconduct. The NDRB found no evidence in the record of any diagnosis for PTSD or TBI while in service , but there was documentation he was being evaluated for combat - stress-related symptoms as of 20 May 2010 . The Applicant provided post-service documentation from the VA indicati ng he was being treated for PTSD/TBI symptoms related to his service in Iraq and Afghanistan. While the NDRB does not believe his PTSD or TBI mitigated his subsequent misconduct, it does note his two combat deployments to Iraq and Afghanistan and his commanding officer’s initial recommendation for a General (Under Honorable Conditions) characterization of service. By a vote of 4 - 1 , the NDRB found the awarded characterization of service to be inequitable and that relief in the form of an upgrade in the characterization of service to General is warranted. Partial relief granted. Full relief to Honorable was not granted due to the serious nature of the misconduct.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record s, and discharge process, the Board found the discharge was proper but not equitable. Therefore, the awarded characterization of service shall but 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.

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 .


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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