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USMC | DRB | 2012_Marine | MD1201634
Original file (MD1201634.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20120720
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)       20070428 - 20070514     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20070515     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20101102      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 18 D a y ( s )
Education Level:        AFQT: 47
MOS: 0612
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

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

Periods of CONF :

NJP:

- 20100607 :       Article (Absence without leave, failed to attend transition assistance classes on 20100524)
          Article (Assaulting or willfully disobeying superior commissioned officer , 5 specifications )
         Specification 1: In that SNM on or about 20100301 to present violated a direct order given by the Commanding Officer to not have contact with PFC G_____.
         Specification 2: In that SNM on or about 20100301 to present failed to report violations of PFC G_____ order not to have contact with SNM.
         Specification 3: In that SNM on or about 20100501 failed to report violations of an MPO where SNM’ s children were named as the protected witnesses.
         Specification 4: In that SNM on or about 20100521 violated a direct order given by the Commanding Officer to not have contact with PFC G_____.
         Specification 5: In that SNM on or about 20100525 violated a direct order given by the CO to not have contact with PFC G_____.
         Article (Failure to obey order or regulation , driving his POV on a state and base suspended license )
         Article (False official statements)
         Article (General A rticle , 2 specifications )
         Specification 1: Adultery - In that SNM on or about July 2009 to O ctober 2009 was engaged in a sexual relationship with a woman, PFC G_____, not his wife.
         Specification 2: Cohabitation, wrongful - In that SNM on or about 20100121 to present did wrongfully cohabit ate with a woman, PFC G_____, not his wife.
         Awarded: Suspended:

SCM:     SPCM:    CC:



Retention Warning Counseling :

- 20090213 :       As per Base Order 5101.3r the Marine Corps Base Camp Pendleton Base Magistrate has revoked your driving privileges aboard Marine Corps Base Camp Pendleton for a period of 1 month. On 20081230 you were cited for speeding and using a cell phone while driving on base. On 20090211 your case was adjudicated and you were found guilty. Also, your violation of Article 86, “absence without leave” of the UCMJ. On 20090211 you were not at your appointed place of duty , 0630 PT formation. You were absent for approximately 20 minutes. This is not your first offense; you were previously counseled on the same subject.

- 20090410 :       For violation of Article 92 of the UCMJ - Failure to obey order or regulation in that I was terminated from the Marine & Family Services Men’s Educational Program (MEP) Track B for three unexcused absences after being ordered by my Commanding Officer to attend all scheduled appointments and meetings.

- 20090714 :       As per Base Order 5101.3r the Marine Corps Base Camp Pendleton Base M agistrate has revoked your driving privileges aboard Marine Corps Base Camp Pendleton for a period of 1 year. On 20090104, you were cited for driving while on a suspension of r evocation while driving aboard base. On 20090701, your case was adjudicated and you were found guilty.

- 20100607 :       For recent Battery level NJP for a violation of A rticles 134x2, 107, 90x5, 92, and 86 of the UCMJ held on 20100607.

- 20100628 :       For failure to correct your deficiencies from your alcohol rehabilitation failure and prior NJPs and 6105s. Specifically, you have been given ample opportunity to correct your deficiencies through mentoring and counseling by your chain of command and battery staff. Your inability to correct yourself and adhere to the rules and articles of the UCMJ demonstrates poor judgment and is a detriment to the good order and discipline of this command .

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. The Marine Corps Separation and Retirement Manual, (MCO P1600.19F), effective 1 September 2001 until Present, Paragraph 6209, ALCOHOL REHABILITATION FAILURE.
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 in-service performance outweighs his misconduct.
2 .       The Applicant contends his misconduct was mitigated by P ost-Traumatic Stress Disorder (P TSD ) .

Decision

 Date: 20 1 3 0509            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 stated that he was diagnosed with PTSD related to his combat service in Iraq. The Applicant’s service record documents completion of a deployment in Area of Operations Phoenix, Iraq from February to September 200 8 , conducting combat service support 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 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 sta ndards 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 86 ( Absence without leave, 1 specification), Article 90 ( Assaulting or willfully disobeying superior commissioned officer, 5 specifications), Article 92 ( Failure to obey order or regulation, 1 specification), Article 107 (False official statement, 1 specification), and Article 134 (General A rticle - Adultery, 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 waived right to consult with a qualified counsel but elected his right to submit a written statement . He was ineligible for an administrative separation board.

: (Decisional) ( ) . The Applicant contends his in - service performance , which included being awarded a Good Conduct Medal, outweighs his misconduct. The Applicant was never awarded a Good Conduct Medal. The reference to the medal in Block 18 of his DD Form 214 refers to the resetting of the time counter for calculating one’s eligibility for the medal, and the date of 7 June 2010 corresponds to his NJP. The Applicant, however, is correct in asserting that all of his misconduct occ urred after returning from Iraq in September 2008. From February 2009 until the end of his enlistment in November 2010, the Applicant received five retention warnings and was found guilty of violating numerous serious UCMJ articles at an NJP. The record also reflects alcohol rehabilitation treatment , a command who gave the Applicant multiple opportunities to correct his poor behavior, and no signs of PTSD until he was notified of administrative separation processing. While the Applicant also met the requirements for administrative separation for Misconduct (Serious Offense) and Misconduct (Pattern of Misconduct), both of which typically result in an Under Other Than Honorable Conditions characterization, his command chose to administratively separate the Applicant for Alcohol Rehabilitation Failure with a lenient recommendation for a General (Under Honorable Conditions) characterization of service. After a complete review of the records, the NDRB determined his discharge was warranted, proper, and equitable. Relief denied.

: (Decisional) ( ) . The Applicant contends his misconduct was mitigated by PTSD. The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue. The NDRB requested the Applicant’s medical treatment records, but the Department of Veterans Affairs was unable to locate them.

T he NDRB , however, did find reference during a post - deployment PTSD screening that the Applicant did not meet the standard for a medical diagnosis of PTSD . T he Applicant did not provide any documentary evidence of a medical diagnosis by c ompetent medical a uthorities to support his claim other than a Problem List from an unidentified source that lists PTSD as one of many medical issues. This list contains no diagnosis nor details concerning the Applicant’s PTSD claim. The only reference supporting PTSD in the Applicant’s record is found within the Applicant’s statement submitted after he was notified by his command of separation proceedings. Though the Applicant may feel PTSD was the underlying cause of his misconduct, the record reflects willful and repetitive 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. A bsence without leave, willful ly disobeying a superior officer, false official statements, adultery, and failure to obey order s or regulations were all conscious decisions to violate the ten ets of honorable and faithful service. Lacking any evidence of a diagnosis of PTSD by competent medical authorities , the NDRB is unable to establish this contention as a basis for mitigation or consideration as an extenuating circumstance. Furthermore, the Applicant’s record reflects d issatisfaction with medical treatment for his substance dependence and a conscious decision to remove himself from the same treatment. 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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