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USMC | DRB | 2012_Marine | MD1201315

Original file (MD1201315.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20120531

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)       20010615 - 20010909     Active:

Period of Service Under Review:
Date of Current Enlistment: 20010910     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20080111      H ighest Rank:
Length of Service : Y ea rs M on ths 2 D a ys
Education Level:        AFQT: 61
MOS: 7212
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

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

Periods of UA / CONF :

NJP:

- 20030129 :       Article 115 (Malingering , did from about 6 January 2003 to 15 January 2003, for the purpose of avoiding service as an enlisted person, claim he was mentally unstable and suicidal)
         Awarded: Suspended:

- 20031202 :      Article (Absence without leave, 2 specifications )
         Specification 1: O n or about 2300, 6 November 2003, failed to be at appointed place of duty
         Specification 2: O n or about 0530, 12 November 2003, failed to be at appointed place of duty
         Awarded: Suspended:

SCM:     CC:

SPCM:

- 20040329 :       Art icle (Absence without leave terminated by apprehension, 20031216 to 2004 0118 , 33 days )
         Art icle (Wrongful use, possession, etc. of controlled substances , 4 specifications )
         Specification 1: W ithdrawn
         Specification 2: O n or about 8 December 2003, wrongfully used methamphetamine
         Specification 3: O n or about 8 December 2003, wrongfully used marijuana
         Specification 4: O n or about 12 December 2003, wrongfully used marijuana [ S pecification 4 set aside and dismissed by the U.S. Navy-Marine Corps Court of Criminal Appeals]
         Sentence : 120 days

- 20040719 :       Art icle 92 (Failure to obey an order or regulation)
         Art icle (Wrongful use, possession, etc. of controlled substances , 2 specifications)
         Specification 1: O n or about 13 April 2004 wrongfully use marijuana
         Specification 2: O n or about 13 April 2004 wrongfully possess marijuana
         Sentence : 150 days (sentence adjudging confinement in excess of 90 days suspended for a period of 12 months)

Retention Warning Counseling :

- D ate N ot Found in Record : For violation of Article 91, insubordinate conduct toward a noncommissioned officer.

- D ate NFIR : For failing to obey an order given by his Class Advisor by not going to a medical appointment as directed. And for purposely avoiding a SINCGARS radio class as a student and informing his Class Advisor that he had a medical appointment, which he deliberately lied about and instead went to the barracks to sleep.

- D ate NFIR : For violation of Article 86 (Absence without leave); reference NJP dated 20031202.

- 20040405 : For refusal of drug treatment.

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 1105, DISCHARGE ADJUDGED BY SENTENCE OF COURT-MARTIAL , 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 IV, Para 403m(7)(a), Presumption Concerning Court-Martial Specifications .

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

Applicant’s Issues

1.       The Applicant seeks clemency to enhance employment opportunities.
2 .       The Applicant seeks clemency to qualify for service - related benefits.
3 .       The Applicant contends his discharge characterization is inequitable based on his in-service conduct.
4.       The Applicant contends P ost-Traumatic Stress Disorder (P TSD ) and his failing marriage were mitigating factors in his misconduct.

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

As a result of the Applicant’s claim of PTSD, in accordance with U.S. Code, Title X, 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 service record documents completion of a deployment to Iraq in 2003, conducting combat operations in support of Operation IRAQI FREEDOM.

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 Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. With respect to a discharge adjudged by a court-martial case, 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. In response to the Applicant’s clemency request, relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts. The Applicant’s case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency. The Applicant’s record of service included 6105 counseling warnings, for o f the Uniform Code of Military Justice (UCMJ): Article 115 ( Malingering ) and Article 86 ( Absence without leave, 2 specifications) , and for of the UCMJ: Article 86 ( Absence without leave, 33 days ) , Article 92 (Failure to obey an order or regulation), and Article 112a (Wrongful use, possession, etc. of controlled substances, 3 specifications) . The Applicant also had a pre-service drug waiver for using marijuana 15 times prior to entering the Marine Corps, and acknowledged complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 14 June 2001. The Applicant’s service record documents a punitive conviction and punishment, as adjudged by a Special Court-Martial, on 29 March 2004. A qualified legal defense counsel represented the Applicant throughout the trial by Special Court-Martial process. Given the facts of the case, the Special Court-Martial, dated 2 9 March 2004, awarded the Applicant a Bad Conduct Discharge, reduction in pay grade to E-1, and confinement for a period of 120 days. At a second Special Court-Martial, dated 19 July 2004, the judge awarded the Applicant a Bad Conduct Discharge and confinement for a period of 150 days. On 22 August 2007, the United States Navy-Marine Corps Court of Criminal Appeals affirmed the findings and sentence.

: (Nondecisional) The Applicant seeks clemency to enhance employment 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 whether clemency is warranted for a punitive discharge .

: (Nondecisional) The Applicant seeks clemency to qualify for service - related 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.

: (Decisional) ( ) . The Applicant contends his discharge characterization is inequitable based on his in-service conduct. During the Applicant’s less than three years of service before going on appellate leave after his second Special Court-Martial, he received two retention warnings and was found guilty of violating UCMJ Article 115 at an NJP before participating in combat operations in Iraq. After his return from Iraq, he received two more retention warnings and was found guilty of numerous UCMJ violations at another NJP and two Special Courts-Martial. His average Proficiency and Conduct marks over his enlistment were 4.4/4.1, respectively, which reflect below-average conduct. After a complete review of the Applicant’s service records, his statement, and those provided in his application, t he N DRB found the evidence of record did not contain sufficient mitigating or extenuating factors to offset the seriousness of the offenses for which the discharge was awarded. Relief denied.

4 : (Decisional) ( ) . The Applicant contends PTSD and his failing marriage were mitigating factors in his misconduct. The Applicant stated on his DD Form 293 that he was never the same after returning from Iraq and that his PTSD, along with his marriage ending , w ere the cause of his poor choices. His post-Iraq misconduct included two retention warnings, an NJP for violating UCMJ Article 86 and two Special Courts-Martial for violations of UCMJ Articles 86 and 92 and multiple violations of Article 112a. On the Applicant’s behalf, a licensed marriage and family therapist submitted a letter to the NDRB , dated 15 July 2012, in which she detailed her diagnosis of the Applicant’s PTSD . This letter also referenced a 22 April 2004 medical report from the Medical Annex Base Brig that indicate d a PTSD diagnosis. The NDRB repeatedly requested the Applicant’s in-service medical records from the VA but was unable to obtain them. The Applicant was found guilty at two Special Courts-Martial of multiple violations of UCMJ Article 112a ( Wrongful use, possession, etc. of controlled substances ). Additionally, t he Applicant had a pre-service drug waiver for using marijuana 15 times prior to entering the Marine Corps. Though the Applicant may feel that personal problems associated with his failing marriage and PTSD were the underlying cause of his misconduct, the record reflects willful misconduct that demonstrated he was unfit for further service. The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions. After a complete review of the records and documentation submitted by the Applicant, the NDRB determined his PTSD did not mitigate his misconduct and that there is no basis for clemency. 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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USMC | DRB | 2012_Marine | MD1201315

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