Search Decisions

Decision Text

USMC | DRB | 2013_Marine | MD1300009
Original file (MD1300009.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20121001
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)       20080814 - 20080914     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20080915     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20110930      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 16 D a y ( s )
Education Level:        AFQT: 71
MOS: 0331
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

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

Periods of UA / CONF :

NJP:

- 20090713 :       Article (Failure to obey order or regulation - consuming alcohol under the legal age of 21)
         Article (General A rticle - acting belligerent and disorderly while intoxicated)
         Awarded: Suspended:

SCM:

- 20110505 :       Art icle (Failure to obey order or regulation , 2 specifications )
         Specification 1: Wrongfully possessing an unregistered firearm
         Specification 2: Operating a motor vehicle while under the suspended privileges
         Article 111 (Drunken or reckless operation of vehicle, aircraft, or vessel)
          Sentence :

SPCM:

CC:

- 20110330 :       Offense: Operating a vehicle with a BAC of .17 on 20110312

Retention Warning Counseling :

- 20110511 :       For DUI with a BAC of .21 and your civilian court conviction dated 20110330 for DUI with a BAC of .17.



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 P1900.16E), 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 .

C. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article s 92 and 111 .



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

Applicant’s Issues

 1.       The Applicant contends Post-Traumatic Stress Disorder (PTSD) was the underlying cause of his misconduct.

Decision

Date : 20 1 3 0627            Location: Washington D.C .         R epresentation : VT Dept of VA

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 in the Helm a nd Province of Afghanistan from 15 December 2009 to 12 July 2010, conducting combat operations in support of OPERATION ENDURING FREEDOM. The Applicant was wounded in action on 14 June 2010.

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 warning, for o f the Uniform Code of Military Justice (UCMJ): Article 92 ( Failure to obey order or regulation , 1 specification of drinking alcohol under age 21) and Article 134 ( General A rticle , 1 specification of disorderly conduct - drunkenness ) , one Summary Court-Martial for of the UCMJ: Article 92 ( Failure to obey order or regulation , 2 specifications ) and Article 111 ( Drunken or reckless operation of vehicle, aircraft, or vessel) , and one civilian conviction for driving under the influence of alcohol . The Applicant also had a pre-service w aiver for driving under the influence of alcohol and using marijuana prior to entering the Marine Corps . Based on offenses committed by the Applicant, command referred charges to a Special Court-Martial. H owever, the Applicant entered into an agreement to plead guilty at a S ummary C ourt- M artial , waive his right to an administrative separation board , and receive a recommended Under Other Than Honorable Conditions discharge to avoid a S pecial C ourt- M artial and a potential punitive discharge. The Applicant’s battalion commander recommended suspension of his discharge for 12 months , however, the S eparati on A uthority did not concur and ordered the Applicant to be discharged.

: (Decisional) ( ) . The Applicant contends PTSD was the underlying cause of his misconduct. The Applicant was screened for both PTSD and T raumatic B rain I njury (TBI) by Navy physicians on 10 May 2011 during the administrative separation process , and they did not diagnose PTSD or TBI. However, post-service, Department of Veterans Affairs physicians diagnosed the Applicant with PTSD in January 2012. The Applicant’s misconduct began with underage drinking and belligerence prior to his combat tour in Afghanistan. After his return from Afghanistan, h e continued misconduct from alcohol abuse with a civilian conviction for driving under the influence of alcohol and a S ummary C ourt- M artial for a separate DUI incident, possession of an unregistered firearm, and driving while under suspended privileges. The Applicant’s command referred him to alcohol abuse rehabilitation counseling after his civilian arrest for DUI. His post-service record shows he received a third DUI charge from civilian authorities in January 2012. The NDRB determined the Applicant’s record reflects an alcohol abuse problem that began prior to his combat tour. However, his record of service does document combat during his tour in Afghanistan, which included a combat wound. After a complete review of the records, the NDRB determined his PTSD does mitigate his post-deployment mis conduct and warrants an upgrade to General. 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 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

  • NAVY | DRB | 2011_Navy | ND1101046

    Original file (ND1101046.rtf) Auto-classification: Denied

    Relief denied.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries and the administrative separation 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. ” Additional Reviews : After a document review has been conducted,...

  • USMC | DRB | 2013_Marine | MD1300194

    Original file (MD1300194.rtf) Auto-classification: Denied

    However, the record clearly shows the Applicant’s PTSD was taken into proper consideration throughout the separation process, and it was determined that the Applicant’s PTSD did not completely mitigate the Applicant’s severe and repetitive misconduct. 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...

  • USMC | DRB | 2012_Marine | MD1201330

    Original file (MD1201330.rtf) Auto-classification: Denied

    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 . ” 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 | 2009_Marine | MD0901735

    Original file (MD0901735.rtf) Auto-classification: Denied

    The Applicant provided documentation the U.S Department of Veterans Affairs (VA) rated him 100 percent for PTSD, but stated he could not receive paid treatment. However, the NDRB determined partial relief was warranted based on clemency and by majority rule, the NDRB voted to upgrade the discharge characterization to General (Under Honorable Conditions), but voted unanimously not to change the narrative reason for separation.Summary: After a thorough review of the available evidence, to...

  • USMC | DRB | 2012_Marine | MD1201808

    Original file (MD1201808.rtf) Auto-classification: Denied

    Over the next 14 months, he received another retention warning and was found guilty of additional charges at a second Summary Court-Martial before being found guilty at a Special Court-Martial for violating UCMJ Article 112a for using marijuana. After a review of the records, the NDRB found no basis for clemency. ” 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...

  • USMC | DRB | 2013_Marine | MD1301864

    Original file (MD1301864.rtf) Auto-classification: Denied

    The Applicant’s service record documents completion of a deployment to Afghanistan from November 2010 to February 2011, in support of Operation ENDURING 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. Relief denied.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record...

  • USMC | DRB | 2011_Marine | MD1101549

    Original file (MD1101549.rtf) Auto-classification: Denied

    Based on the violation of Article 112(a), processing for administrative separation, by service policy, was mandatory.The Applicant was notified - in writing - of the Command’s intent to process the Applicant for administrative separation for Misconduct (Drug Abuse) in accordance with paragraph 6210.5 of the Marine Corps Separation and Retirement Manual (MARCORSEPMAN). On 01 March 2004, the Separation Authority approved the request that the Applicant be separated administratively with an...

  • USMC | DRB | 2010_Marine | MD1000256

    Original file (MD1000256.rtf) Auto-classification: Denied

    This issue does not serve to provide a foundation upon which the Board can grant relief; there is no requirement or law that grants the NDRB the authority to re-characterize discharges based solely on the issue of obtaining veterans benefits. Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, medical and service record entries, and the discharge process, the Board found Therefore, the awarded characterization of service shall and the...

  • USMC | DRB | 2014_Marine | MD1400754

    Original file (MD1400754.rtf) Auto-classification: 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 by the NDRB. ” Additional Reviews : After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is...

  • USMC | DRB | 2009_Marine | MD0902169

    Original file (MD0902169.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. He was twice arrested for underage possession of alcohol (received an enlistment waiver) and continued heavy regular use of alcohol following enlistment. ” 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...