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USMC | DRB | 2013_Marine | MD1300408
Original file (MD1300408.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20121211
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)       20080125 - 20080218     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20080219     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 2011110 8      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 21 D a y ( s )
Education Level:        AFQT: 92
MOS: 0311
Proficiency/Conduct M arks (# of occasions): ( ) / 1.9 ( )         Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle (2) LOC

Periods of UA :

NJP:

- 20090622 :       Article (Failure to obey order or regulation - Liberty violation)
         Awarded: Suspended:

SCM:

- 20090409 :       Art icle (Failure to obey order or regulation - Underage drinking)
         Art icle (False official statements)
         Art icle (General A rticle - Adultery)
          Sentence : 20090409 - 20090420, 12 days

SPCM:    CC:

Retention Warning Counseling :

- 20090622:      For violation of Article 92 resulting in NJP

 - 20090821 :       For assignment of 3.0/1.9 Proficiency and Conduct Marks for the first Semi-Annual period of 2009.

- 20110815 :       For diagnosis of Condition , N ot a D isability per par. 6203.2m f o r Sleepwalking disorder, which interfered with my duties as a rifleman, by my inability to participate in field duties and deploy.





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. Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 1 September 2001 and Present, paragraph 6203, CONVENIENCE OF THE GOVERNMENT .
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 wants an upgrade to be eligible for education benefits.
2.       The Applicant contends he should have been diagnosed with P ost -T raumatic S tress D isorder (PTSD) while in service.

Decision

Date : 20 1 3 0221            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 a deployment to Haiti in 2010 in support of Operation Unified Response.

 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 standards of equity and propriety. The Applicant’s record of service included 6105 counseling warnings, for o f the Uniform Code of Military Justice (UCMJ): Article 92 ( Failure to obey order or regulation - Liberty violation ) , and for of the UCMJ: Article 92 ( Failure to obey order or regulation - Underage drinking ) , Article 107 (False official stateme nts), and Article 134 (General A rticle - adultery) . Competent medical authority diagnosed t he Applicant with sleep walking and recommended him for administrative separation for a C ondition , N ot a D isability per paragraph 6203.2 of the Marine Corps Separation and Retirement Manual (MARCORSEPMAN) . Based on the recommendation of competent medical authority, command administratively processed for separation. When notified of a dministrative separation processing using the procedure, the Applicant waived rights to consult with a qualified counsel and submit a written statement . The Applicant was not entitled to an administrative separation board.

: (Nondecisional) The Applicant wants an upgrade to be eligible for education benefits. There is no requirement, or law, that grants re-characterization solely on the issue of facilitating access to VA benefits. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing educational opportunities or employment opportunities. Regulations limit the NDRB’s review solely to a determination of the propriety and the equity of a discharge. As such, this issue does not serve to provide a foundation upon which the NDRB can grant relief.
: (Decisional) ( ) . The Applicant contends he should have been diagnosed with PTSD while in the Marine Corps. Prior to the Applicant’s separation, competent medical authority reviewed the Applicant’s Post-Deployment Health Assessment from Haiti and evaluated the Applicant for PTSD and T raumatic B rain Injury and reported that he “has not been diagnosed with or reported symptoms consistent with PTSD or TBI . ” It was, however, determined that he suffered from sleepwalking disorder, which is considered a Condition, Not a Disability per the MARCORSEPMAN and so there was no reason to appear before a medical board, and there was no evidence of other medical conditions or permanent disability. His medical records also revealed that the Applicant was diagnosed with anxiety determined to be brought about by his wife’s medical problems and stress , and he was prescribed Zoloft for anxiety . Post-service, the Department of Veterans Affairs (VA) diagnosed the Applicant with PTSD with sleepwalking disorder (also claimed as anxiety) and awarded him a 30% disability rating. The NDRB is not bound by VA decisions, nor do VA decisions have any bearing on the decisions of the NDRB. Decisions reached by the VA to determine if former servicemembers rate certain VA benefits do not affect previous discharge decisions made by the Marine Corps . The criteria used by the VA in determining

whether a former servicemember is eligible for benefits are different than that used by the Marine Corps when determining a member’s discharge characterization. After a complete review of the records , the Applicant’s statement , and VA documentation , t he evidence of record does not indicate that proper authority erred by not initiating a medical board for the Applicant or erred by not diagnosing the Applicant with PTSD . T he NDRB determined he was properly discharged for Condition, Not a Disability.

As to the characterization of service, the Applicant was administratively separated and not separated upon expiration of enlistment or fulfillment of service obligation. The characterization of service is determined by the quality of the member’s total performance of duty and conduct during the current enlistment, including the reason for separation. Other considerations shall be given to the member’s length of service, grade, aptitude, and physical and mental condition. In April 2009, 14 months into the Applicant’s enlistment, he was found guilty at a Summary Court-Martial of violating UCMJ Articles 92, 107, and 134. Two months later, his command found him guilty at NJP of violating UCMJ Article 92 and issued him a 6105 retention warning counseling. Two months later, his command issued him a second 6105 retention warning counseling for below-average Proficiency and Conduct marks. At this point, the Applicant met the requirements for administrative separation processing for Misconduct (Pattern of Misconduct) and Misconduct (Commission of a Serious Offense). His command, however, opted not to process him for discharge, which most likely would have resulted in an Under Other Than Honorable Conditions characterization of service, and allowed him to continue to serve in the Marine Corps. In early 2010, the Applicant deployed to Haiti in support of Operation Unified Response. In August 2011, competent medical authority diagnosed the Applicant with sleepwalking disorder , and his command administratively processed him for separation due to Condition, Not a Disability. After a complete review of the records , the Applicant’s statement , and VA documentation , the NDRB determined his post-service-diagnosed PTSD did not mitigate his in-service misconduct, all of which occurred before he deployed to Haiti, and further determined that the A pplicant’s service was honest and faithful but significant negative aspects of his conduct or performance of duty outweighed the positive aspects of his service record . Therefore, the General (Under Honorable Conditions) characterization of service was warranted and was equitable . 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.


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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