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USMC | DRB | 2013_Marine | MD1300341
Original file (MD1300341.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20121204
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)       20030825 - 20040815     Active:  

Pre-Service Drug Waiver:

Period of Service Under Review:
 Date of Current Enlistment: 20040816     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20080924      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 09 D a y ( s )
Education Level:        AFQT: 45
MOS: 033 1
Proficiency/Conduct M arks (# of occasions): ( NFIR ) / ( NFIR )    Fitness Reports:

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

Periods of CONF : 20080715-20080807, 24 days

NJP:

- 20071030 :      Article (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer)
         Article (General A rticle - wrongfully threaten a noncommissioned officer)
          Awarded: Suspended:

- 20080221 :      Article (Absence without leave - failed to show for duty)
         Article (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer)
         Article (Failure to obey order or regulation - refused to stand duty)
         Awarded: Suspended:

- 20080424 :      Article (Absence without leave , 4 specifications )
         Specification s 1-3: Failed to check in with OOD
         Specification 4: Failed to report to Bn OOD for restriction check in
          Awarded: Suspended:

SCM:

- 20080516 :      Article 86 (Absence without leave , 2 specifications )
         Specification 1: 20080424
         Specification 2: 2008042 5 -20080430, 7 days
         Article (Wrongful use, possession, etc. of controlled substances , to wit: marijuana 24 ng/ml )
         Article 134 (General A rticle - breaking restriction)
          Sentence: (pretrial 2008 0430 -20080523, 24 days)

SPCM:    CC:

Retention Warning Counseling:

- 20071102 :      For violating Article s 92 and 134. Specifically, on 20070901, you were disrespectful in language and did threaten a noncommissioned officer by saying “F --- you mother f -----” and “I will kick your f------ ass b itch . ” This type of behavior is inconsistent with the traditional good standards of good order and discipline. Your lack of discipline and judgment is conduct unacceptable and will not be tolerated.

- 20080221 :      For violating Articles 86, 91 , and 92. In that SNM was UA for duty, refused to stand his duty , and was insubordinate to a SNCO in language and deportment when told to stand his duty. Your failure to obey and follow rules and regulation s is conduct inconsistent with the traditional standards of good order and discipline. Your lack of discipline and judgment is conduct unacceptable and will not be tolerated.

- 20080424 :       For violating Article 86 in that you failed to report to the BN OOD for restriction muster o n several occasions.

NDRB Documentary Review Conducted (date):        20100218
NDRB Documentary Review Docket Number:   MD10-00322
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. 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 Post-Traumatic Stress Disorder (PTSD) after his Afghanistan and Iraq deployments led to his misconduct.
2.       The Applicant contends his in-service conduct warrants an upgrade.
3 .       The Applicant contends he was treated unfairly by his command.
4 .       The Applicant contends his post-service conduct warrants an upgrade.
Decision

 Date: 20 14 0421            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 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 deployment s conducting combat operations: Afghanistan from January to May 2006 in support of Operation ENDURING FREEDOM and Iraq from March to Octob er 200 7 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 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): Ar ticle 86 (Absence without leave, 5 specifications ), Article 91 (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer , 2 specifications ) , Article 92 (Failure to obey order or regulation - refused to stand duty) , and Article 134 (General A rticle - wrongfully threaten a noncommissioned officer) , and for of the UCMJ: Ar ticle 86 (Absence without leave, 2 specifications ), Article 112a (Wrongful use, possession, etc. of controlled substances, to wit: marijuana 24 ng/ml) , and Article 134 (General A rticle - breaking restriction) . 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 24 August 2003 . Based on the Article 112a violation , processing for administ rative separation is mandatory. When notified of a dministrative separation processing using the procedure, the Applicant exercised righ t to consult with a qualified coun sel but his rights to submit a written statement and request an administrative board .

: (Decisional) ( ) . The Applicant contends PTSD after his Afghanistan and Iraq deployments led to his misconduct. The Applicant provided an undated letter from the Memphis Vet Center signed by a social worker stating that the Applicant exhibits symptoms of PTSD. However, there is no thing in the record, and the Applicant did not provide, a PTSD diagnosis by a psychiatrist or psychologist. Though the Applicant may feel that PTSD was the underlying cause of his misconduct, the record reflects willful and persistent misconduct by breaking restriction, i nsubordinate conduct, failure to obey orders and regulations, using marijuana, and wrongfully threaten ing a noncommissioned officer . T he 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. After an exhaustive review, the NDRB determined PTSD did not mitigate the Applicant’s misconduct , and his discharge was proper and equitable . Relief denied.





: (Decisional) ( ) . The Applicant contends his in-service conduct , to include receiving a Combat Action Ribbon , warrants an upgrade. Based on the Applicant’s record of service, the NDRB determined the Applicant engaged in conduct involving one or more acts or omissions that constituted a significant departure from the conduct expected of members of the Naval Service, and the awarded characterization of service was warranted. Relief denied.

: (Decisional) ( ) . The Applicant contends he was treated unfairly by his command. The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention the command treated him unfairly. The record shows the Applicant had significant misconduct , and his command gave him ample opportunities to correct his behavior. The record further shows the Applicant’s command showed leniency by accepting the Applicant’s pre-trial agreement rather than to continue to pursue a punitive discharge at a Special Court-Martial . The NDRB discerned no impropriety or inequity in the Applicant’s separation. Relief denied.

4: (Decisional) ( ) . The Applicant contends his post-service conduct warrants an upgrade. 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 and two character references. The Applicant could have provided documentation as detailed in the Post-Service Conduct paragraph in the Addendum , however, 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. The Board determined the documentation submitted by the Applicant does not demonstrate if in-service misconduct was an aberration. The characterization of service received was appropriate considering the length of service and 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. 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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