Search Decisions

Decision Text

USMC | DRB | 2012_Marine | MD1201954
Original file (MD1201954.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20120925
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)       20050928 - 20060723     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20060724     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20110506      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 13 D a y ( s )
Education Level:        AFQT: 79
MOS: 2621 / 2611
Proficiency/Conduct M arks (# of occasions): ( 13 ) / ( 13 )        Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle (3) ( 3 )

Periods of CONF :

NJP:

- 20090501 :       Article (Absence without leave - left from appointed place of duty, to wit: range )
         Article ( Failure to obey order or regulation , failure to attend and fire on the rifle range ).
         Awarded: Suspended:

- 20090825 :      Article (Absence without leave - morning accountability formation for platoon level physical fitness)
         Awarded: Suspended:

- 20110215 :      Article (Absence without leave - scheduled SARP appointment)
         Article (Failure to obey order or regulation - bottle of Captain Morgan containing 35% alcohol by volume was discovered in your barrack s room)
         Article (Provoking speeches or gestures)
         Article (General A rticle , indecent language )
         Awarded: Suspended: Suspension vacated 20110223

SCM:     SPCM:    CC:

Retention Warning Counseling :

- 20070223 :       For failure to obey order or regulation and making false statement. Specifically, you violated the Commanding Officer’s Policy Letter 2-06 Procedures for Entry-Level Student Purchase of a POV and purchased a vehicle without completing the required steps and then made a false statement to your Squad Leader concerning the purchase. Your disregard for following orders will not be tolerated.

- 2007 10 23 :       For violation of Article 91 by saying “fuck you” to a noncommissioned officer.

- 200 9 0 3 01 :       For unauthorized absence and disobeying a lawful order.

- 20101105 :       For violation of CCO 1630.6E with Change 1 and 2 to wit: SNM was caught by the MVSD Detachment SgtMaj consuming Jim Beam and g inger a le in the Barracks 1662 parking lot.

- 20110224 :       For being 30 minutes late for you r restriction muster check - in with the Battalion OOD.

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

          “ MARCORSEPMAN 6210.3 ”

The NDRB will recommend to the Commandant of the Marine Corps that the DD 214 be corrected as appropriate.
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 seeks to improve his education and employment opportunities.
2.       The Applicant seeks Department of Veterans Affairs ( VA ) support and care .
3 .       The Applicant contends his mental disorders prior to and during his service led to his misconduct .
4.       The Applicant contends his P ost- T raumatic S tress D isorder (PTSD) mitigates his misconduct .
5 .       The Applicant contends he was singled out due to exposing wrongdoing of more senior Marines.
6 .       The Applicant contends his misconduct was minor , and it is usually handled through counselings and corrective training for most service members.
7 .       The Applicant contends his in-service conduct does not warrant the stigma of an Under Other Than Honorable Conditions cha racterization of service.

Decision

Date: 20 1 3 0326            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 S ection 1553 (d)(2), the service secretary expedited a final decision and accorded the case sufficient priority to achieve an expedited resolution. The NDRB reviewed the Applicant’s statement; 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 to the Al-Anbar Province of Iraq from August 2008 to March 200 9 in support of combat operations during 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 Applicant’s record of service included 6105 counseling warnings and for o f the Uniform Code of Military Justice (UCMJ): Article (Absence without leave, 3 specifications : Specification 1: Left from appointed place of duty, to wit: range, Specification 2: Morning accountability formation for platoon level physical fitness, and Specification 3: Scheduled SARP appointment ) , Article (Failure to obey order or regulation , 2 specifications : Specification 1: Failure to attend and fire on the rifle range and Specification 2: B ottle of Captain Morgan containing 35% alcohol by volume was discovered in your barrack s room ), Article (Provoking speeches or gestures) , and Article (General A rticle , indecent language ) . The Applicant submitted a pretrial agreement to enter a voluntary plea of guilty to violating Articles 86, 92, 117, and 134 at Re gimental or Battalion Commander’s NJP and waive his administrative separation board, provided the C onvening A uthority withdr a w the charges against him from his pending S pecial C ourt- M artial. Based on the offenses committed by the Applicant and the pretrial agreement , 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 and submit a written statement , but per the pretrial agreement , he waived his right to request an administrative board .

: (Nondecisional) The Applicant seeks to improve his education and 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 the propriety and equity of the discharge.

: (Nondecisional) The Applicant seeks VA support and care. The 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. Th e Applicant should be aware that the VA has announced special VA enrollment access for PTSD and mental health treatment to combat veterans discharged under other

than dishonorable conditions. Effective Jan. 28, 2008, combat veterans discharged from active duty on or after Jan. 28, 2003 are eligible for combat veteran enhanced eligibility and enrollment placement into Priority Group 6 (unless eligible for higher enrollment Priority Group placement) for 5 years post discharge. Additionally, the VA determines the eligibility for enrollment in its programs - independent of the Applicant’s characterization of service as determined by the Marine Corps. The Applicant, as a combat veteran, is encouraged to contact his local VA affairs representative for more information and may request a review of service and determination of benefits from the VA. Alternately, he may call 1-877-222-8387 or visit the following website for more information: http://www4.va.gov/healtheligibility/Library/pubs/CombatVet/CombatVet.pdf .
: (Decisional) ( ) . The Applicant contends his mental disorders prior to and during his service led to his misconduct. When reviewing a discharge, the NDRB does consider the extent to which a medical problem might affect an Applicant’s performance and ability to conform to the military’s standards of conduct and discipline. However, the NDRB generally does not consider the circumstances surrounding the Applicant’s stated condition or diagnosis to be of sufficient nature to excuse the Applicant’s misconduct. The NDRB determined his mental disorders did not mitigate or excuse his misconduct. Relief denied.
4: (Decisional) ( ) . The Applicant contends his PTSD mitigates 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 NJPs , which were willful failures to meet the requirements of his contract honorably. The Applicant’s official military service record diagnosis of PTSD coupled with additional post-service documentation provided by the Applicant supports his contention that he 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 five 6105 counseling warnings and three NJPs . After a thorough review of the records and the substantial documentation provided by the Applicant, t he NDRB determined his PTSD did not mitigate his misconduct. Relief denied.

5 : (Decisional) ( ) . The Applicant contends he was singled out due to exposing wrongdoing of more senior Marines. The NDRB presumes regularity in the conduct of governmental affairs in the absence of persuasive evidence to the contrary. There is nothing in the record, nor did the Applicant produce any documentary evidence, to show that the Applicant was singled out and punished too severely or inappropriately. The NDRB discerned no impropriety or inequity in the separation proceedings . Relief denied.
6 : (Decisional) ( ) . The Applicant contends his misconduct was minor , and it is usually handled through counselings and corrective training for most service members. The Applicant’s record of service exhibits a clear pattern of misconduct. The Applicant received five 6105 counseling warnings , which demonstrates he was given multiple chances to correct his behavior. Further , the Applicant was found guilty of violating UCMJ Articles 92 (three specifications) and 134 , violations of which could have resulted in a punitive discharge and possible confinement if adjudicated and awarded as part of a sentence by a S pecial or G eneral C ourt- M artial. The NDRB determined the Applicant’s misconduct was not minor and further determined the Applicant’s discharge was proper and equitable. Relief denied.

7 : (Decisional) ( ) . The Applicant contends his in-service conduct does not warrant the stigma of an Under Other Than Honorable Conditions characterization of service . The NDRB reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis. If such a review reveals an impropriety or inequity, relief is in order. Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval Service. Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Marine Corps . A preponderance of the evidence reviewed supports the conclusion that the Applicant had a pattern of misconduct , that separation from the Naval Service was appropriate, and that he engage d in conduct involving one or more acts or omissions that constitute d a significant departure from the conduct expected of members of the Naval Service . Relief denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, medical and service record entries, discharge process, and substantial documentation provided by the Applicant, the Board found Therefore, the awarded characterization of service shall UNDER OTHER THAN HONORABLE CONDITIONS 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

Similar Decisions

  • USMC | DRB | 2013_Marine | MD1300077

    Original file (MD1300077.rtf) Auto-classification: Denied

    The Applicant a pre-service drug waiver for using marijuana prior to entering the Marine Corps, acknowledged complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 26 June 2008.Based on the drug policy violation, processing for administrative separation is mandatory.The Applicant signed a pre-trial agreement to plead guilty at non-judicial punishment or Summary Court-Martial for the Article 92 violations, provided the Convening Authority withdraw the charges and...

  • USMC | DRB | 2013_Marine | MD1301373

    Original file (MD1301373.rtf) Auto-classification: Denied

    Clemency denied.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, the record of trial by Special Court-Martial, and discharge process, the Board found that clemency was not warranted. ” 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. ...

  • USMC | DRB | 2013_Marine | MD1301301

    Original file (MD1301301.rtf) Auto-classification: Denied

    There is nothing in the record, nor did the Applicant provide convincing evidence, to show that he was either not responsible for his conduct or that he should not be held accountable for his actions.The NDRB determined PTSD did not mitigate his misconduct and further determined clemency is not warranted. Clemency denied.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, the record of trial by Special Court-Martial, and...

  • USMC | DRB | 2015_Marine | MD1500957

    Original file (MD1500957.rtf) Auto-classification: Denied

    The Applicant’s record of service included 6105 counseling warnings, and for of the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave; 5 specifications), and Article 91 (Insubordinate conduct towards warrant, noncommissioned, or petty officer; 2 specifications). ” 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...

  • USMC | DRB | 2013_Marine | MD1301271

    Original file (MD1301271.rtf) Auto-classification: Denied

    The NDRB did not find any reference to a medical diagnosis of PTSD or TBI in the Applicant’s service record to support such a claim, and the Applicant did not provide any documentary evidence of a medical diagnosis by competent medical authorities to support such conditions.In the 10 April 2007 letter documenting his 06 April 2007 psychiatric evaluation, he was not determined to be suffering from PTSD or TBI. Relief denied.Summary: After a thorough review of the available evidence, to...

  • USMC | DRB | 2013_Marine | MD1300764

    Original file (MD1300764.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. The NDRB determined this contention is without merit since DoD Instruction 1332.14 does not prohibit physicians other than clinical psychologists or psychiatrists from conducting PTSD or TBI screenings; it only directs that any diagnosis of PTSD must come from a clinical psychologist or psychiatrist. ” Additional Reviews : After a document review has been conducted, former...

  • USMC | DRB | 2010_Marine | MD1001825

    Original file (MD1001825.rtf) Auto-classification: Denied

    Types of Documents Submitted/reviewedRelated 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/ToCongress member: Pertinent Regulation/Law A. Paragraph 6210, MISCONDUCT ,...

  • USMC | DRB | 2013_Marine | MD1300917

    Original file (MD1300917.rtf) Auto-classification: Denied

    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 two deployments to Iraq 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...

  • USMC | DRB | 2015_Marine | MD1500977

    Original file (MD1500977.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. There is no indication in the evidence of record or in the documentation submitted by the Applicant that the Applicant was recommended for or processed for a medical board by proper authority. 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.

  • USMC | DRB | 2013_Marine | MD1300341

    Original file (MD1300341.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. 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. ” Additional Reviews :...