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USMC | DRB | 2012_Marine | MD1201330
Original file (MD1201330.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20120604
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)       20070104 - 20070819     Active:            20070820 - 20100902 HON

Period of Service Under Review:
Date of Current Enlistment: 20100903     Age at Enlistment:
Period of E nlistment : Years M onth
Date of Discharge: 20120404      H ighest Rank:
Length of Service : Y ea r M on th s 02 D a ys
Education Level:        AFQT: 68
MOS: 1371
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness Reports:

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

Periods of UA / CONF :

NJP:

- 20110331 :       Article (Failure to obey order or regulation - DUI)
         Article (Drunken or reckless operation of a vehicle, aircraft, or vessel)
         Awarded: Suspended: Vacated on 20110427

- 20110504 :      Article (Failure to obey order or regulation)
         Awarded: Suspended:

- 20111027 :      Article (Failure to obey order or regulation)
         Article (Drunken or reckless operation of a vehicle, aircraft, or vessel)
         Awarded: Suspended:

SCM:             SPCM:            CC:

Retention Warning Counseling :

- 20110331 :       For violation of Article 92, F ailure to obey order and regulation , and A rticle 111 , D runken operation of a vehicle. Prior to the incident, you were briefed by your chain of command to not drink and drive for the weekend liberty brief. On 20110320 , Jacksonville Police pulled you over and you were cited for a DUI with a BAC of .10.

- 20110501 :       For violation of Article 92, F ailure to obey order or regulation.




- Unable to read :         For Unauthorized Absence, Article 86 and Failure to Follow Lawful Orders, Article 92. On 20110512, you were found asleep in your rack at 0830, despite the fact that you were assigned to duty at Building 4571 as part of Combat Engineer Platoon. Your failure to report for duty despite it being your appointed place of duty, it being known to you that your actions were not authorized per the terms of your restriction, and were not in keeping in good order and discipline of your platoon have continued your pattern of misconduct.

- 20111028 :       For recent and continued pattern of misconduct. I received NJP on 20111027 for violation of A rticle 92 , F ailure to obey order or regulation , and A rticle 111 , D runken or reckless operation of vehicle, aircraft, or vessel. Specifically on 20111007 I received a DWI in Jacksonville, NC with a BAC on .10, even after receiving a safety brief on 20111006 from my Co 1 st Sgt with instructions no t to drink and drive.

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 contends his Post-Traumatic Stress Disorder (PTSD) was a mitigating factor 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 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 two deployments to Afghanistan in support of Operation ENDURING FREEDOM from April 2009 to December 2010 . The military service record further documents that he was awarded the Afghanistan Campaign Medal , Combat Action Ribbon, and the NATO Medal-ISAF Afghanistan for his service.

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. T he 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 (Failure t o obey order or regulation, 3 specifications ) and Article (Drunken or reckless operation of a vehicle, aircraft, or vessel , 2 specifications ) . 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 exercised rights to consult with a qualified counsel, submit a written statement, and request an administrative board . The Applicant appeared before an A dministrative S eparation B oard (ASB) on 17 February 20 12 . The ASB determined by a majority vote that the preponderance of the evidence supported the notification for separation, and the ASB recommended that the Applicant should be separated from the Marine Corps with a General ( Under Honorable Conditions ) characterization ( without suspen sion ). The command and S eparati on A uthority approved the ASB’s recommendations and discharged him accordingly .

: (Decisional) ( ) . The Applicant contends his PTSD was a mitigating factor 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 three nonjudicial punishments for multiple violations of the UCMJ , to include two DUIs , all of which occurred in a several-month period following his second deployment to Afghanistan . 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. Moreover, the NDRB determined that the unique circumstances of this individual case, coupled with the documented PTSD diagnosis, and the Applicant’s heroic and meritorious service in combat, warranted additional consideration in the determination of his overall characterization of service. By a vote of 5-0, the NDRB found that PTSD mitigated his misconduct, and relief in the form of an upgrade in the characterization of service to Honorable and a narrative change to Secretarial Authority is warranted. Relief granted.

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 change to .


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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