Search Decisions

Decision Text

USMC | DRB | 2013_Marine | MD1300427
Original file (MD1300427.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20121227
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)       20021204 - 20030408     Active:   20030409 - 20061010 HON

Period of Service Under Review:
Date of Current Enlistment: 200 61011     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20071116      H ighest Rank:
Length of Service : Y ea r M on th 05 D a ys
Education Level:        AFQT: 42
MOS: 0121
Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle (2) CoC (2) CoA

Period of CONF :

NJP:
- 20071001 :       Article (Absence without leave 0700, 20070923 until 0700, 2 0070924, pre-trial restriction muster)
         Awarded: Suspended:

SCM:    SPCM:   CC:     Retention Warning Counseling :

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 030409 UNTIL 061010 ”
         “ ”
        
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 :        


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

Applicant’s Issues

 1.       The Applicant contends his misconduct was mitigated by an underlying medical condition.

Decision

Date: 20 1 3 0724            Location: Washington D.C .         R epresentation :

By a vote of the Characterization shall .
 By a vote of the 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. The 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 for o f the Uniform Code of Military Justice (UCMJ): Article (Absence without leave 0700, 20070923 until 0700, 20070924, pre-trial restriction muster ). The records reflect that on 10 August 2007 , the Applicant allegedly violated UCMJ Article 90 (Assaulting or willfully disobeying superior commissioned officer) and Article 92 (Fail to obey order or regulation) . For these offenses , the Applicant was referred for trial by Special Court-Martial. On 17 September 2007, the Applicant submitted his request for separation in lieu of trial by court-martial (SILT). In the request for discharge, the Applicant noted that his counsel had fully explained the elements of the offenses for which he was charged and that he was guilty of those offenses. He certified a complete understanding of the negative consequences of his actions and that characterization of service could be Under Other Than Honorable Conditions, which might deprive him of virtually all veterans benefits based upon his current enlistment. When notified of a dministrative separation processing using the procedure, the Applicant exercised rights to consult with a qualified counsel and submit a written statement, but waived right to request an administrative board .

The Applicant provided a copy of his Department of Veterans Affairs (VA) awards letter showing he is receiving VA benefits for a service-connected disability as ad ditional documentation for the NDRB’s consideration or to rebut the Government’s presumption of regularity that was not already documented in his official military record of service and medical record.

: (Decisional) ( ) . The Applicant contends his misconduct was mitigated by an underlying medical condition. The NDRB conducted a thorough review of the Applicant’s service and medical records , which reflect that on 09 August 2007 , he was diagnosed with Generalized Anxiety Disorder by a medical officer. In the diagnosis , it was stated that the Applicant’s duties as a drill instructor ha d exacerbated the symptoms , and he wa s not psychologically fit to continue in the role of a drill instructor. The following day , the Applicant signed a written memorandum from his commanding officer that he wa s willfully disobeying his order to return to his duties as a Drill Instructor. As a result , the Applicant was brought up on charges of violating UCMJ Articles 90 and 92 and referred for trial by Special Court-Martial. The record shows the Applicant was not taken to court-martial but was administratively separated from the Marine Corps after requesting SILT. While the Applicant may feel he was suffering from a mental condition and could no longer perform his duties , it appear s from the records that he gave his command no time to evaluate the situation and his condition. A medical officer’s recommendation is just that, a recommendation. The decision to remove a servicemember from his duties lies with his commanding officer. The record of evidence clearly shows the Applicant waived his rights to trial by court-martial and an administrative separation board. If the Applicant felt he was mistakenly charged with a crime, it was his obligation to contest those charges at the time they were made. During a trial or administrative separation board, he would have had the opportunity to mount a defense against the charges. The Applicant submitted no substantial evidence to support his contention, therefore, the NDRB must rely upon the presumption of regularity in the conduct of Government affairs. The NDRB does not consider the Applicant’s mental condition to be a mitigating factor in his misconduct. 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

Similar Decisions

  • USMC | DRB | 2012_Marine | MD1200355

    Original file (MD1200355.rtf) Auto-classification: Denied

    Types of Documents Submitted/reviewedRelated to Military Service: DD 214:Service/Medical Record:Other Records: Verbatim Record of Trial by SPCM 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/ToCongress member: DEPARTMENT OF THE...

  • USMC | DRB | 2009_Marine | MD0902536

    Original file (MD0902536.rtf) Auto-classification: Denied

    Considering the nature of the pending offense and the Applicant’s record of service, the command accepted his request for administrative separation in lieu of trial by court-martial, and the Applicant was separated administratively from the service.The Applicant provided documentation that included a copy of his Honorable Discharge certificate from his original period of service with the Marine Corps and a personal statement to the Board. In the Applicant’s case, the command exercised its...

  • USMC | DRB | 2010_Marine | MD1001962

    Original file (MD1001962.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues Non-decisional Issues: The Applicant seeks an upgrade in the characterization of his service at discharge in order to enhance employment opportunities. Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, the record of trial by Special Court-Martial, and the discharge process, the NDRB determined that clemency...

  • USMC | DRB | 2011_Marine | MD1100642

    Original file (MD1100642.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. ” 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. Additionally, the NDRB does not have the authority to change a narrative reason for separation to one indicating a medical disability or other...

  • USMC | DRB | 2010_Marine | MD1000245

    Original file (MD1000245.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. As such, Applicant seeks correction to his narrative reason for separation and the corresponding characterization of service and re-enlistment code from the Marine Corps.The NDRB reviewed the Applicant’s issues and the discharge process. ” Additional Reviews : After a document review has been conducted, former members are eligible for a personal appearance hearing, provided...

  • USMC | DRB | 2009_Marine | MD0901139

    Original file (MD0901139.rtf) Auto-classification: Denied

    ” 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. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities. If the action includes either a punitive or administrative discharge for misconduct or for any basis wherein an Other Than Honorable...

  • USMC | DRB | 2011_Marine | MD1100298

    Original file (MD1100298.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. After considering the record, and the evidence provided by the Applicant, the NDRB determined an upgrade to General (Under Honorable Conditions) is warranted. ” 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...

  • USMC | DRB | 2009_Marine | MD0901355

    Original file (MD0901355.rtf) Auto-classification: Denied

    The command informed the Applicant he was required to send in documentation from his doctor of his status every 30 days, but Applicant failed to do so, which wasnoted in the official record by the medical chief: “Private (Applicant) said he was TNPQ but never sent any information to the company or me.” and “To date Private (Applicant) had not sent in any medical documentation of any sort.” The Applicant failed to comply with the requireddocumentation needed by his command.For the edification...

  • USMC | DRB | 2009_Marine | MD0900327

    Original file (MD0900327.rtf) Auto-classification: Denied

    The NDRB reviewed the Applicant’s concerns as submitted with his DD-293 Form and the following is provided: A. Finally, the NDRB notes the medical records do not indicate the Applicant made any complaints while being examined by military medical officials he sustained abuse or maltreatmentduring recruit training, nor is there any indication the Applicant’s doctor suspected abuse or maltreatment during his examination.The NDRB determined the evidence available does not show the Applicant’s...

  • USMC | DRB | 2015_Marine | MD1501128

    Original file (MD1501128.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. 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 remain UNDER OTHER THAN HONORABLE CONDITIONS and the narrative reason for separation shall remain . ” Additional Reviews : After a document review has been...