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USMC | DRB | 2012_Marine | MD1201069
Original file (MD1201069.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20120411
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)       20031006 - 20031102     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20031103     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20071212      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 10 D a y ( s )
Education Level:        AFQT: 41
MOS: 3521
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle CoC MM

Periods of UA : 20070523 - 20070531, 9 days
         I n Hands of Civilian Authorities : 20070308 - 20070322, 1 4 days

NJP:

- 20040622 :       Article (Failure to obey order or regulation by consuming alcohol under the legal drinking age of 21)
         Awarded: Suspended:

- 20041129 :       Article (General A rticle - as a result of wrongful previous overindulgence in intoxicating liquor or drugs incapacitated for the proper performance of duties)
         Awarded: Suspended:

- 20050128 :      Article (Failure to obey order or regulation by wrongfully drinking under age)
         Article (General A rticle - as a result of wrongful previous overindulgence in intoxicating liquor incapacitated for the proper performance of duties)
         Awarded: Suspended:

- 20070502 :       Article (Absence without leave, 3 specifications )
         Specification 1: 0700, 20070302
         Specification 2: 1100, 20070415
         Specification 3: 0515, 20070416
         Awarded: Suspended: Suspension vacated 20070508

SPCM:   CC:





SCM:

- 20071101 :       Art icle (Absence without leave, 4 specifications )
         Specification 1: 0700, 20070520
         Specification 2: 0900, 20070520
         Specification 3: 0500, 20070521
         Specification 4: 0700, 20070815
          Art icle (Insubordinate conduct toward warrant office, noncommissioned officer, or petty officer, 2 specifications )
         Specification 1: Disrespectful in language and deportment toward SSgt
         Specification 2: Disrespectful in language and deportment toward Sgt
          Art icle (General A rticle, 3 specifications )
         Specification 1: Drunk and disorderly
         Specification 2: Wrongfully and unlawfully leave the scene of an accident without making his identity known
         Specification 3: Wrongfully communicate to Sgt a threat
          Sentence : (20071101-20071124, 24 days)

Retention Warning Counseling :

- 20061129 :       For drunkenness, incapacitation for performance of duties through prior wrongful indulgence in intoxicating liquor or any drug. Applicant was arrested on 20061020 for DUI and reckless driving. Applicant was released to Company. Applicant was subject of a NJP held on 20061129 in that applicant was found guilty of Article 134.

- 20070502 :       For my recent NJP for violations of Article 86 (3 specifications)

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 P1900.16F), 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 .



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

Applicant’s Issues

 1.       The Applicant believes his in-service conduct and achievements are worthy of consideration based on his awards for outstanding service and his P roficiency (Pro) and Conduct (Con) marks.
2.       The Applicant contends his P ost- T raumatic S tress D isorder (PTSD) was a mitigating factor in his misconduct.
3.       NDRB Issue: The Applicant should have been discharged for Alcohol Rehabilitation Failure.

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 a combat deployment in Iraq (Feb 2006 - Sept 2006) in support of Operation IRAQI FREEDOM. The military service record further documents that t he Applicant was awarded the Iraqi Campaign Medal for his service and was diagnosed with PTSD in July 2007, ten months after his Iraq deployment . As a result of the Applicant’s claim of PTSD, 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 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 6105 counseling warnings, for o f the Uniform Code of Military Justice (UCMJ): Article 86 ( Absence without leave, 3 specifications ), Article 92 ( Failure to obey order or regulation by consuming alcohol under the legal drinking age of 21 , 2 specific ation s ), and Article 134 ( General A rticle - as a result of wrongful previous overindulgence in intoxicating liquor or drugs incapacitated for the proper performance of duties , 2 specific ation s ) , and for of the UCMJ: Article 86 ( Absence without leave, 4 specifications ) , Article 91 ( Insubordinate conduct toward warrant office, noncommissioned officer, or petty officer - disrespectful in language and deportment toward SSgt, 2 specifications ), and Article 134 ( General A rticle, 3 specifications: D runk and disorderly , W rongfully and unlawfully leave the scene of an accident without making his identity known , and W rongfully communicate to Sgt a threat ) . Based on the offenses 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 or a General Court-Martial Convening Authority review. The record shows the Applicant unconditionally waived his right to a hearing before an administrative discharge board as part of a pre-trial agreement .

: (Decisional) ( ) . The Applicant believes his in-service conduct and achievements are worthy of consideration based on his awards for outstanding service and his P ro /C on marks . The Applicant was administratively separated and not separated upon expiration of enlistment or fulfillment of service obligation. The characterization of service is determined by the quality of the member’s total performance of duty and conduct during the current enlistment, including the reason for separation. Other considerations shall be given to the member’s length of service, grade, aptitude, and physical and mental condition. Based on the Applicant’s record of service and significant misconduct , the NDRB determined the Applicant’s characteriz ation of service was warranted. Relief denied.



: (Decisional) ( ) . The Applicant contends his PTSD was a mitigating factor in his misconduct. The Applicant further states that because of PTSD , he drank excessively , which led to h is misconduct. In determining discharge characterization of service, the Applicant’s conduct forms the primary basis for consideration. The Applicant’s in-service conduct included four nonjudicial punishments and a Summary Court-Martial for violation s of UCMJ articles related to alcohol incidents . The Applicant’s official military service record diagnosis of PTSD, supporting statements by his commanding officer, coupled with additional post-service documentation provided by the Applicant, support s the Applicant’s contention that h e suffered from PTSD in service. However, the Applicant’s official military service record also reflect s that the Applicant had a pattern of misconduct totaling three NJP s, all for UCMJ violations related to alcohol incidents , prior to his Iraq deployment . In his recommendation for administrative separation of the Applicant, the Commanding Officer (CO) , Combat Logistics Battalion 7 stated that he had taken into account the Applicant’s on-going treatment for PTSD, but the Applicant’s misconduct started back in MOS school long before he reported to his first operational unit , and all the Applicant’s misconduct cannot be attributed to PTSD . Although the Applicant was diagnosed with in-service PTSD , and it might have been a mitigating factor in his misconduct that occurred after his Iraq deployment, PTSD does not account for the misconduct prior to. Therefore, t he NDRB determined relief was not warranted based on this contention. Relief denied.

: (Decisional) (Board Issue) ( Equity ) PARTIAL RELIEF WARRANTED. During the Board’s review of the Applicant’s request for an upgrade, the NDRB determined that the Applicant qualified for administrative separation on the basis of A lcohol R ehab ilitation F ailure two months after returning from his deployment to Iraq. The record shows the Applicant completed an outpatient substance abuse treatment program in May 2005 . On 29 November 2006 , the Applicant received a retention warning counseling for drunkenness, incapacitation for performance of duties through prior wrongful indulgence in intoxicating liquor or any drug , DUI arrest , and reckless driving . Considering the Applicant enlisted with a pre-service DUI waiver and had completed a substance abuse treatment program , his command sh ould have processed him for administrative separation in accordance with the Marine Corps Separation and Retirement Manual for A lcohol R ehabilitation F ailure . After a careful review of the Applicant’s official service records, and taking into consideration his testimony, the recommendation of his c ommanding o fficer , and the facts and circumstances unique to this case, the NDRB determined partial relief is warranted based on equitable grounds. The NDRB voted unanimously to upgrade the characterization of service to General (Under Honorable Conditions) but not change the narrative reason for separation . Partial relief warranted.

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 the discharge was proper but not equitable . 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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