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USMC | DRB | 2013_Marine | MD1300154

Original file (MD1300154.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20121026

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)       20040813 - 20050328     Active:          2005032 9 - 20080928

Period of Service Under Review:
Date of Current Enlistment: 20080929     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20120411      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 13 D a y ( s )
Education Level:        AFQT: 38
MOS: 3521
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness Reports:

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

Periods of UA/ CONF : UA: 20101213, 1 day; 20110526-20110614, 20 days ; 20110812-20110830, 19 days (I n Hands of Civil Authorities ) ; 20120119-20120201, 14 days / CONF:

NJP:

- 20090202 :      Article (Absence without leave)
         Awarded: Suspended:

- 20090321 :      Article (Absence without leave)
         Awarded: Suspended:

- 20100409 :      Article (Failure to obey order or regulation)
         Awarded: Suspended:

- 20100730 :      Article (Absence without leave , 3 specifications )
         Specification 1: Physical fitness formation 0530-0730, 2010708
         Specification 2: Late for formation 1500-1550, 20110216
         Specification 3: Morning muster 0715-0820, 20100312
         Article 134 (General Article - Adultery, wrongfully have sexual intercourse with a woman not his wife)
         Awarded: Suspended:

- 20110114 :      Article (Absence without leave, 5 specifications )
         Specification 1: 0600-1300, 20101101
         Specification 2: 0600-1300, 20101102
         Specification 3 : 0530-1300, 20101103
         Specification 4 : 0430-1300, 20101104
         Specification 5 : 0600, 20101213 - 1430, 20101214, 1 day
         Awarded: Suspended: Suspension vacated 20110115

- 20111026 :      Article (Absence without leave , 6 specifications )
         Specification 1: 0730, 20 1 10 411 - 0730, 20 1 10 422 , 18 days
         Specification 2: 0730, 201105 02 - 0730, 20110 503 , 1 day
         Specification 3: 0730, 20110504 - 0730, 20110507, 2 days
         Specification 4: 0730, 20110525 - 0730, 20110601, 7 days
         Specification 5: 0730, 20110602 - 0730, 20110625, 23 days
         Specification 6: 0730, 20110628 - 0730, 20110831, 48 days
         Awarded: Suspended:

SCM:     SPCM:    CC:

Retention Warning Counseling:

- 20090321 :      For absence without leave.

- 20100409 :      For violation of Article 92.

- 20100802 :      For unauthorized absence (3 specifications). You were reduced to the rank of Private First Class for these violations. Specifically, not being at your appointed place of duty on three separate occasions. These actions are prejudicial to good order and discipline and will not be tolerated. With these violations of the UCMJ and understanding your actions, you are developing a pattern of misconduct and your actions are not in compliance with the Marine Corps.

- 20110114 :      For unauthorized absence (5 specifications). You were reduced to the rank of Private and your actions are prejudicial to good order and discipline and will not be tolerated and you have started to develop a pattern of misconduct.

- 20110121 :      For breaking restriction. Specifically on 20110115 you were 1 hour late and 20110116 you were 15 minutes late for restriction sign in.

- 20111206 :       For unauthorized absence and breaking restriction. Specifically, you were absent from company formation at 0530 on 20111206 and did not return to work until 1345. Since you did not return to work until 1345 you missed your restriction check in at 0700. Your inconsistency to appear at your appointed place of duty has a detrimental impact on your company’s combat readiness.

Administrative Corrections to the Applicant’s DD 214

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

         “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 050329 UNTIL 080928 ”

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:                  Other Documentation:
                  Additional Statements:
         From Applicant:          From/To Representation:          From/To Congress member:

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

Applicant’s Issues

1.       The Applicant seeks to qualify for Department of Veterans Affairs ( VA ) medical benefits.
2.       The Applicant contends his misconduct is mitigated due to the unfair treatment he received from his command while trying to seek medical attention after his combat tours to Afghanistan and Iraq.
3.       The Applicant contends his post - service accomplishments warrant consideration for an upgrade.

Decision

Date: 20 1 3 07 17          Location: Washington D.C .         R epresentation :

By a vote of the Characterization shall .
By a vote of th e Narrative Reason shall .

Discussion

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, 16 specifications) , Article 92 ( Failure to obey order or regulation, 1 specification), and Article 134 (General A rticle - A dultery, 1 specification). The record shows the Applicant was not taken to court-martial but was administratively separated from the Marine Corps after requesting separation in lieu of trial by court-martial (SILT). Per regulations, to attain approval for a SILT request, service members must have been afforded the opportunity to consult with a qualified counsel and submit a written statement. They must also fully understand the elements of the offense(s) for which they were charged, and they must admit their guilt. They further certify a complete understanding of the negative consequences of their actions and that characterization of service could be Under Other Than Honorable Conditions, which might deprive them of virtually all veterans benefits based upon their current enlistment. The NDRB did not have the Applicant’s administrative separation package to determine whether or not the Applicant waived rights to consult with a qualified counsel, submit a written statement, and request an administrative board or a General Court-Martial Convening Authority review .

: (Nondecisional) The Applicant seeks to qualify for VA medical 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 re characterization solely on the issue of obtaining veterans benefits , and this issue does not serve to provide a foundation upon whi ch the Board can grant relief.

: (Decisional) ( ) . The Applicant contends his misconduct is mitigated due to the unfair treatment he received from his command while trying to seek medical attention after his combat tours to Afghanistan and Iraq. Statements alone, without sufficient documentary evidence, are not enough for the NDRB to form a basis of relief. After an extensive review of the Applicant’s official record, the NDRB found no evidence of the use of any one of the numerious services available to service members who undergo challenges during their enlistment s , such as the Navy Chaplain, Medical or Mental Health professionals, Navy Relief Society, Family Advocacy Programs, or even the Red Cross. Without supporting documentation for the claim of mistreatment , the NDRB presumes regularity in the affairs of the government. The NDRB determined the Applicant’s personal problems and episodes from his combat tours were not mitigating factors in his misconduct. Relief denied.


: (Decisional) ( ) . The Applicant contends his post - service accomplishments warrant consideration for an upgrade. The NDRB is authorized to consider post-service factors in the re-characterization of a discharge. However, there is no law, or regulation, that provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to exist during the period of enlistment in question. Besides the Applicant’s statement on the DD Form 293, he failed to provide any documentary evidence on his behalf for post-service consideration. The Applicant could have provided documentation as detailed in the Post-Service Conduct paragraph in the Addendum with the recognition that completion of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case by case basis to determine if post-service conduct establishes that the in-service misconduct was an aberration. Without post-service documentary evidence, the Board determined the awarded characterization of service shall remain Under Other Than Honorable Conditions. 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.

Pertinent Regulation/Law

A. Paragraph 6419, SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL , 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 IV, Para 403m(7)(b), Presumption Concerning Court-Martial Specifications .

C. 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 .

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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USMC | DRB | 2013_Marine | MD1300154

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