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USMC | DRB | 2012_Marine | MD1201772
Original file (MD1201772.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20120815
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)       20031002 - 20031026     Active:  

Period of Service Under Review:
 Date of Current Enlistment: 20031027     Age at Enlistment:
Period of E nlistment : Years M onth
Date of Discharge: 20090901      H ighest Rank:
Length of Service : Y ea rs M on ths 05 D a ys
Education Level:        AFQT: 50
MOS: 0351
Proficiency/Conduct M arks (# of occasions): ( 13 ) / ( 16 )        Fitness Reports:

Awards and Decorations ( per DD 214):      Rifle w/ Combat “V ”

Periods of UA : 20060202-20060711, 159 days; 20060724-20070322, 241 days
Time Lost (per DD 214): 20071212-20071226, 15 days
NJP:

- 20040615 :      Article (Absence without leave , 0700, 2004052 4 - 0600, 2004060 3 , 10 days)
         Awarded: Suspended:

- 20060109 :      Article (Absence without leave - failure to go to appointed place of duty, 2 specifications )
         Specification 1: On 0600, 20051217 formation
          Specification 2: On 20051227 formation
          Awarded: Suspended:

SCM:

- 20071227 :      Article (Absence without leave , 20070521-20071212, 205 days)
         Sentence: (20070327-20070510, 44 days)

SPCM:    CC:

Retention Warning Counseling:

- 20040510:      For being late returning from the past two 96-hr passes. The next time I am late from returning from any Holiday I will be charged with UA.



- 200 5 0 525 :      For your la ck of maturity. Conduct of this nature is totally unacceptable an d will not be tolerated. Your im maturity a llows for poor judgment and discipline on your part and discredit to the United States Marine Corps as an organization.

- 20080107 :      For unauthorized absence from 20070521 to 20071212.

- 20090805 :       On 20090209 the Sports Medicine Clinic determined that your Lumbar Facet Syndrome/Spondylosis/ Lumbago was classified as a condition, not a physical disability per para 6203.2 of the Marine Corps Separation Manual.

NDRB Documentary Review Conducted (date):        20110908
NDRB Documentary Review Docket Number:   MD11-01419
NDRB Documentary Review Findings:                 Proper as issued and that no change is warranted.
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:                  Other Documentation:    
                  Additional Statements:
         From Applicant:           From/To Representation:           From/To Congress member:        

Pertinent Regulation/Law

 A. Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 1 September 2001 and Present, paragraph 6203, CONVENIENCE OF THE GOVERNMENT .

 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 service was honorable and supporting evidence shows h is misconduct was due to severe P ost-Traumatic Stress Disorder (P TSD ) .
2.       The Applicant contends h is discharge characterization was inequitable , because his immediate chain of command recommended he receive an Honorable discharge.
 3.       The Applicant contends his post-service conduct shows his misconduct while on active duty was an aberration and not a true testament to his character.

Decision

 Date: 20 1 3 0318            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 a deployment to Iraq in support of Operation IRAQI FREEDOM from February 200 5 to September 200 5 . He also completed a deployment to Djibouti, Africa from June 2004 to October 2004 in support of Operation ENDURING FREEDOM. The military service record further documents that he was awarded the Iraqi Campaign Medal, Combat Action Ribbon, and the N avy and Marine Corps Commendation Medal with Combat Distinguishing Device for his service. The Applicant provided a copy of his U.S. Department of Veterans Affairs (VA) medical treatment record, indicating he was dia gnosed post-service with PTSD and Traumatic Brain Injury (TBI) .

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 warnings, for o f the Uniform Code of Military Justice (UCMJ): Article 86 ( Absence without leave, 3 specifications: [1] UA from 0700, 2004052 4 - 0600, 2004060 3 , 10 days; [2] Failure to go to appointed place of duty o n 20051217 for formation ; [3] Failure to go to appointed place of duty on 20051227 for formation ) , and for of the UCMJ: Article 86 ( Absence without leave, 20070521-20071212, 205 days (apprehended) ). Additionally, the Applicant had two other periods of unauthorized absence for 159 days (surrendered) and 241 days (apprehended), which were not adjudicated. On 13 February 2009 , t he Battalion Surgeon recommended the Applicant for administrative separation due to his diagnosis of Lumbago, Spondylosis , which affected the Applicant’s ability to perform in his MOS and be a good Marine. Based on the diagnosis , command administratively processed for separation for Condition, Not a Disability . When notified of a dministrative separation processing using the procedure, the Applic ant waived rights to consult with a qualified counsel, submit a written statement, and request a General Court-Martial Convening Authority review . Although his chain of command recommended an Honorable characterization, the Separation Authority determined his service warranted a General (Under Honorable Conditions) characterization of service.

: (Decisional) ( ) . The Applicant contends his service was honorable and supporting evidence shows is misconduct was due to severe PTSD. In determining discharge characterization of service, the Applicant’s conduct forms the primary basis for consideration. The Applicant’s in-service conduct included two nonjudicial punishments for three violation s of UCMJ Article 86 and a S ummary C ourt- M artial for a 205-day period of unauthorized absence that ended in the Applicant’s apprehension. Additionally, the Applicant had two other periods of unauthorized absence

(159 days and 241 days) that went unadjudicated. While any of these three extended periods of unauthorized absence would typically have resulted in charges being referred to a Special Court-Martial that likely would have resulted in a punitive (i.e., Bad Conduct) discharge and confinement, the Applicant’s command allowed him to continue to serve. In February 2009, the Applicant’s command recommended him for administrative separation for a Condition, Not a Disability with a recommendation for an Honorable characterization of service. There is no evidence in either the Applicant’s service record, or the documentation he provided, that demonstrated any problems or symptoms manifesting during his enlistment from his service in Iraq. Furthermore, the Applicant’s record does not document any attempts to seek help for any combat - stress-related symptoms while in service between September 2005 (return from Iraq) and February 2009 when he started administrative separation processing and noted trouble sleeping and depression or excessive worry . On 2 March 2009 , during a mental health screening by the assistant battalion surgeon, the Applicant was found negative for PTSD but was diagnosed with Adjustment Disorder. The Applicant submit ted documentation of a VA disability rating for PTSD with panic attacks (50%), cognitive impairment due to TBI (10%), and migraine headaches (10%) and several post-service diagnoses from competent medical authorities for PTSD and TBI. After a complete review of the Applicant’s record of service, combat experiences and commendations , misconduct, separation proceedings, and extensive medical documentation (both in-service and post-service), the NDRB determined his misconduct was not mitigated by his PTSD . His decent Proficiency and Conduct marks during his periods of service after his return from Iraq and when not in a UA status show that he was able to perform effectively when reporting for duty. Though the Applicant may feel that PTSD was 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 . The NDRB determined the Applicant’s conduct, which forms the primary basis for determining the character of his service, reflected a significant departure from the conduct expected of a servicemember and that PTSD did not mitigate his extensive and repetitive misconduct. Relief denied.

: (Decisional) ( ) . The Applicant contends h is discharge characterization was inequitable , because his immediate chain of command recommended he receive an Honorable discharge. The record shows the Commanding Officer, Headquarters Battalion, 1 st Marine Division (REIN) notified the Applicant via letter on 6 April 2009 that he was being processed for administrative separation for Physical Condition Not a Disability. The Commanding Officer, Headquarters Battalion, 1 st Marine Division (REIN) , recommended to the Commanding General, 1 st Marine Division , that he be separated with an Honorable characterization of service. The Separation Authority (Commanding General, 1 st Marine Division) subsequently approved the Applicant ’ s discharge but did not concur with an Honorable characterization, and instead directed the Applicant be separated with a General (Under Honorable Conditions) characterization . The commanding officer’s recommendation for separation is just that, a recommendation. The Separation Authority determines whether the allegations in the notification of the basis for separation are substantiated by the evidence. There is no provisional guarantee that a Marine will receive anything that a local commanding officer recommends. The record of service shows the Applicant was separated for Convenience of the Government - Physical Condition, Not a Disability. Pursuant to the Marine Corps Separation and Retirement Manual, w henever a Marine ’ s performance deteriorates or has an adverse effect on others in the unit, commanding officers and subordinate leaders will try to determine the cause. When the command suspects a physical condition interferes with the Marine ’ s effective performance of duty, the Marine should be referred to the appropriate medical authority. If examination by a medical officer confirms that the Marine is suffering from a physical condition apparently beyond the individual ’ s control and indicates that the condition is not a disability, separation proceedings should be initiated. If a finding of intentional misconduct/willful neglect or other negative aspects of a Marine’s performance outweigh positive aspects of performance, to include P roficiency and C onduct average markings, and administrative separation is warranted, the least favorable characterization of service is G eneral (U nder H onorable C onditions ). In the Applicant’s case, competent medical authority diagnosed the Applicant with Lumbar Facet Syndrome/Spondylosis/Lumbago, and he was recommended for administrative separation . Despite multiple periods of unauthorized absence and average Proficiency and Conduct marks of 3.7/2.9, respectively, his chain of command recommended an Honorable discharge , which was changed by the Se paration Authority to General. After a thorough review, the NDRB determined the separation was equitable. Relief denied.

: (Decisional) ( ) . The Applicant contends his post-service conduct shows his misconduct while on active duty was an aberration and not a true testament to his character. The NDRB considers 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. The Applicant provided a personal statement, transcript from Orange Coast College (OCC) , certificate of completion for outstanding academic achievement at OCC and membership in the P hi Theta Kappa Honors Society , proof of enrollment at the University of California, Los Angeles (UCLA), participation as a r ugby player for UCLA, proof of continuous employment, and t wo character references. After a careful review of the Applicant ’ s post-service documentation and official service record, and taking into consideration his testimony, the testimony of his counsel, and the facts and circumstances unique to this case, the NDRB determined the quality of the Applicant’s service


did not meet the standard of acceptable conduct and performance for naval personnel to warrant an Honorable characterization . The Board determined t he characterization of service received was appropriate considering the length and quality of service and the serious and repetitive nature of the UCMJ violations. 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 is not eligible for further reviews from the NDRB. The Applicant may petition the Board for Correction of Naval Records, 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 for further review using DD Form 149. Their website can be found at http://www.donhq.navy.mil/bcnr/bcnr.htm .


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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