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USMC | DRB | 2013_Marine | MD1300194
Original file (MD1300194.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20121106
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)       20080112 - 20080224     Active:  

Pre-Service Drug Waiver:

Period of Service Under Review:
Date of Current Enlistment: 20080225     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20120224      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 00 D a y ( s )
Education Level:        AFQT: 53
MOS: 0621
Proficiency/Conduct M arks (# of occasions): ( 13 ) / ( 13 )        Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle Pistol (AFGHANISTAN) ACM( 2 ) CoC LoA MM

NJP:

- 20110211 :      Article (Absence without leave , 2 specifications )
         Specification 1: On or about 20110119, while on active duty, failed to report to his appointed place of duty, from 0730 to 1600.
         Specification 2: On or about 20110124, while on active duty, failed to report to his appointed place of duty, from 0530 to 1300.
         Awarded : Susp ended:

- 20110325 :       Article (Drunken or reckless operation of a vehicle, aircraft, or vessel, on or about 20110305, physically control a vehicle, to wit: a passenger car, while the alcohol concentration in his breath was, as shown by chemical analysis, equal to or exceeding .10 grams of a lcohol per 200 liters of breath, which is the limit under North Carolina State Law, in a reckless manner by losing control of the vehicle and striking a telephone pole)
         Awarded: Suspended: Vacated on 20110412.

SCM:

- 20111122 :       Article (Absent without leave , 5 specifications )
         Specification 1: On or about 20110804, without authority, absent himself from his unit, to wit: C ombat Logistics Regiment 2, 2d Marine Logistics Group, located at Camp Lejeune, North Carolina, and did remain so absent until on or about 20110805 , 1 day .
         Specification 2: On or about 20110821, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: his 0700 , 0900, 1 1 00 restriction check-ins.
        

         Specification 3: On or about 20111007, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: FC 400 at 0715.
         Specification 4: On or about 20111012, withou t authority, fail to go at the t ime prescribed to his appointed place of duty, to wit: FC 400 at 0715.
         Specification 5: On or about 20111019, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: FC 400 at 0645.
         Article (Disrespect toward superior commissioned officer , 2 specifications )
         Specification 1: On or about 20110727, behave himself with disrespect toward Captain ______, U.S. Marine Corps, his superior commissioned officer, then known by the SNM , U.S. Marine Corps to be his superior commissioned officer, by slamming the door after being dismissed.
         Specification 2: On or about 20111020, behave himself with disrespect toward Captain ______, U.S. Marine Corps, his superior commissioned officer, then known by the SNM to be his superior commissioned officer, by saying to him, “ F ___ the CO, he ain’t my CO, he ain’t s___,” or words to that effect.
         Article (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer , on or about 20111020, was disrespectful in language and deportment toward Staff Sergeant ______, U.S. Marine Corps, a staff commissioned officer, then known by the SNM to be a superior staff noncommissioned officer, who was then in the execution of his office by saying to her, “and f___ you too,” or words to that effect )
         Art icle (Wrongful use, possession, etc. of controlled substances , to wit: THC 145 ng/m l )
         Sentence : 1 month

SPCM:    CC: NFIR
CIVIL ARREST:

- 20110305 :       Charges: Driving a passenger car, while impaired by alcohol (BAC .10).

Retention Warning Counseling :

- 20110819 :       For violation of Article 92: Failure to obey order or regulation. SNM was given a lawful order by the CO to provide lease documentation for his off-base residence due to his formal separation from his spouse. SNM failed to produce documentation in a timely manner.

- 20110822 :       For violation of Article 92: Failure to obey order or regulation. SNM was given a lawful order by the S-6 Officer -i n - Charge to report to L egal to adjust his Spouse Separation Agreement. SNM is currently separated from his spouse but only paying support for one dependent. SNM was given option to withdraw the legal separation from his spouse or add the second dependent. SNM failed to report to L egal and make the adjustment in a timely manner.

- 20120214 :       For refusal of treatment through the Substance Abuse Rehabilitation Program. On or about 20120104, you refused command-directed treatment pursuant to a urinalysis test on which you tested positive for THC.

- 20120216 :       For failure to maintain accountability of your military issued gear.

Administrative Corrections to the Applicant’s DD 214

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

          “ 03 11 29 ”

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. The Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 1 September 2001 until Present, Paragraph 6210, MISCONDUCT .
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 he did not receive the proper help for his medical issues.
2.       The Applicant contends his command refused to provide him with the proper help.
3 .       The Applicant contends he was struggling to cope and adjust after deploying to Afghanistan.
4.       The Applicant contends his sleep issues led to his misconduct.
Decision

 Date: 20 1 3 0627            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 in-service diagnosis of Post-Traumatic Stress Disorder (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 to Afghanistan from December 2009 to July 2010 , conducting combat support operations 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. 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 Applicant’s record of service included 6105 counseling warnings, for o f the Uniform Code of Military Justice (UCMJ): Article (Absence without leave, 2 specifications) and Article (Drunken or reckless operation of a vehicle, aircraft, or vessel) , for of the UCMJ: Article (Absent without leave, 5 specifications), Article (Disrespect toward superior commissioned officer, 2 specifications), Article (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer), and Article (Wrongful use, possession, etc. of controlled substances, THC 145 ng/ml) , and one civilian arrest for Driving Under the Influence . 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 08 January 2008 . Based on the Article 112a violation , processing for administ rative separation is mandatory. The Applicant agreed to plead guilty at a summary court-martial, waive his a dministrative separation board , and accept an Under Other Than Honorable Conditions discharge if the C onvening A uthority withdrew charges from a S pecial C ourt- M artial .

: (Decisional) ( ) . The Applicant contends he did not receive the proper help for his medical issues. The Applicant further contends his command refused to provide him with the proper help. The record contained no evidence of any wrongdoing by the Applicant’s command, medical personnel, or anyone in the discharge process. Rather, the record shows he received multiple treatments for his health issues, and the Applicant stated on his DD Form 293 that he received a variety of medications to address his sleep problems. The NDRB discerned no impropriety and determined the Applicant’s discharge was proper and equitable. Relief denied.

: (Decisional) ( ) . The Applicant contends he was struggling to cope and adjust after deploying to Afghanistan. In determining discharge characterization of service, the Applicant’s conduct forms the primary basis for consideration. The Applicant’s in-service conduct included two NJPs , one S ummary Court-Martial, a civilian arrest, and four retention warnings. These frequent and serious instances of misconduct were willful failures to meet the requirements of his contract honorably. The Applicant’s official military service record diagnosis of PTSD supports his contention that he was struggling to cope and adjust after deploying to Afghanistan . 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. Further the record clearly shows the Applicant pled guilty at a Summary Court-Martial to avoid a S pecial C ourt- M artial, where he would have had the opportunity to bring forth any mitigating factors. More importantly, t he evidence of record d oes not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions. Disrespect to superior officers and NCOs, urinalysi s confirmation of marijuana usage, driving under the influence, multiple periods of unauthorized absence, and repeated violations of not obeying orders and regulations were all conscious decisions to violate the ten ets of honorable and faithful service. After an exhaustive review, the NDRB determined that PTSD did not mitig ate the Applicant’s misconduct. Relief denied.

4: (Decisional) ( ) . The Applicant contends his sleep issues 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 does not consider the circumstances surrounding the Applicant’s stated condition or diagnosis to be of sufficient nature to excuse the Applicant’s misconduct. Relief denied.

T he 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 .
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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