Search Decisions

Decision Text

USMC | DRB | 2013_Marine | MD1300496
Original file (MD1300496.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20130102
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)       200104 21 - 20010506     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20010507     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20060927      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 21 D a y ( s )
Education Level:        AFQT: 65
MOS: 0651
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle

NJP:

- 20021122 :       Article (Failure to obey order or regulation, on or about 20021107 , violated a base order in which you were cited by PMO at the main gate at Camp Pendleton, CA for driving under the influence of alcohol )
         Awarded: Suspended:

SCM:     CC:

SPCM:

- 200 41 00 8 :       Art icle (Absence without leave, on or about 20040421 , fail to go at the time prescribed to appointed place of duty)
         Art icle (Failure to obey order or regulation, on or about 20040426 , violate a lawful general regulation)
         Art icle (Drunken or reckless operation of a vehicle, aircraft, or vessel , 2 specifications )
         Specification 1: On or about 20040426 control a vehicle while alcohol concentration was .10
         Specification 2: On or about 20040612 control a vehicle while alcohol concentration was .10
         Art icle (Wrongful use, possession, etc., of controlled substances , 2 specifications )
         Specification 1: On or about 20040331 wrongfully use methamphetamine
         Specification 2: On or about 20040603 wrongfully use cocaine
         Art icle (Assault, on or about 20040420 , unlawfully strike a Lance Corporal)
         Art icle (General A rticle, was, on or about 20040420, drunk and disorderly)
          Sentence : ( 1 year , 20040615-20041007, 11 5 days pre-trial , 20041103-20050627, 235 days post trial )

Retention Warning Counseling :

- 20021216 :       For driving under the influence of alcohol aboard Camp Pendleton


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. Paragraph 1105, DISCHARGE ADJUDGED BY SENTENCE OF 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)(a), 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 .



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

Applicant’s Issues

 1.       The Applicant seeks clemency to access Department of Veterans Affairs (VA) benefits.
 2.       The Applicant contends his service and deployment warrant an upgrade.
3. The Applicant contends Post-Traumatic Stress Disorder (PTSD) mitigates his misconduct.

Decision

 Date: 20 1 3 1001            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 comp letion of a deployment to Iraq in 2003 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 NDRB presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. With respect to a discharge adjudged by a court-martial case, 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. In response to the Applicant’s clemency request, relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts. The Applicant’s case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency. The Applicant’s record of service included 6105 counseling warning, for o f the Uniform Code of Military Justice (UCMJ): Article 92 ( Failure to obey order or regulation), and for of the UCMJ: Article 86 ( Absence without leave), Article 92 (Failure to obey order or regulation), Article 111 (Drunken or reckless operation of a vehicle, aircraft, or vessel, 2 specifications), Article 112a (Wrongful use, possession, etc., of controlled substances, 2 specifications), Article 128 (Assault), and Article 134 (General A rticle, drunk and disorderly). The Applicant acknowledged complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 18 April 2001 . The Applicant’s service record documents a punitive conviction and punishment, as adjudged by a Special C ourt-Martial . A qualified legal defense counsel represented the Applicant throughout the trial by Special Court-Martial process. Given the facts of the case, the Special Court-Martial, dated 08 October 2004, awarded the Applicant a Bad Conduct Discharge, reduction in pay grade to E-1, and conf inement for a period of one year . The case was submitted for review to the U.S. Navy-Marine Corps Court of Criminal Appeals without assignments of error; it was reviewed and the findings were affirmed on 13 January 2006.

: (Nondecisional) The Applicant seeks clemency to access VA benefits. The 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 clemency .
: (Decisional) ( ) . The Applicant contends his service and deployment warrant an upgrade. During the Applicant’s 4 years of service before going on appellate leave, he received a retention warning, was found guilty at an NJP and a Special Court-Martial of numerous UCMJ violations, and completed a deployment to Iraq. After a complete review of the Applicant’s service records and his statement, the NDRB determined clemency was not warranted. Relief denied.




: (Decisional) ( ) . The Applicant contends PTSD mitigates his misconduct. The NDRB requested all records of medical treatment, both active duty and post-service, from the VA. The records received from the VA failed to substantiate any diagnosis or findings of PTSD or other mental health concerns. Moreover, the Applicant did not provide any evidence of a diagnosis of PTSD from any other private mental health treatment provider to document his claim. T he evidence of record and the documentation submitted by the Applicant 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 a complete review of the records and documentation submitted by the Applicant, the NDRB determined PTSD did not mitigate his misconduct, and clemency is not warranted on this issue. 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

Similar Decisions

  • NAVY | DRB | 2011_Navy | ND1102168

    Original file (ND1102168.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1.The Applicant seeks an upgrade due to passage of time.2. The NDRB acknowledges the Applicant’s desire to provide a better life for himself and his family, however, this issue does not serve to provide a foundation upon which the Board can grant relief. ” Additional Reviews : After a document review has been conducted, former members are eligible for a personal appearance...

  • USMC | DRB | 2012_Marine | MD1201315

    Original file (MD1201315.rtf) Auto-classification: Denied

    After a complete review of the records and documentation submitted by the Applicant, the NDRB determined his PTSD did not mitigate his misconduct and that there is no basis for clemency. 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...

  • NAVY | DRB | 2014_Navy | ND1400238

    Original file (ND1400238.rtf) Auto-classification: Denied

    As such, the NDRB determined clemency was not warranted on this issue. Although recommended for a medical board, there is no indication in the evidence of record or in the documentation submitted by the Applicant that the Applicant was processed for a medical board by proper authority. ” 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...

  • USMC | DRB | 2013_Marine | MD1301802

    Original file (MD1301802.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 has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities.

  • USMC | DRB | 2013_Marine | MD1301216

    Original file (MD1301216.rtf) Auto-classification: Denied

    Relief granted.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. ” Additional Reviews : After a document review has been conducted, former members...

  • USMC | DRB | 2013_Marine | MD1300503

    Original file (MD1300503.rtf) Auto-classification: Denied

    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. ” Additional Reviews : After a document review has been...

  • USMC | DRB | 2010_Marine | MD1000281

    Original file (MD1000281.rtf) Auto-classification: Denied

    The NDRB conducted a thorough review of the available evidence, to include the Applicant’s pre-service waiver; written acknowledgment of the Marine Corps Policy for Drug Abuse; his Summary of Service; Service Record Entries; Medical records; and the Verbatim Record of Trial by Special Court-Martial along with the Applicant’s contentions. ” Additional Reviews : After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application...

  • USMC | DRB | 2013_Marine | MD1300425

    Original file (MD1300425.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. Clemency 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...

  • USMC | DRB | 2011_Marine | MD1101407

    Original file (MD1101407.rtf) Auto-classification: Denied

    Based on the facts known at the time of the misconduct, the NDRB determined that the deliberate and repetitive violations of the UCMJ warranted punitive action vice administrative processing; as such, the court-martial and resultant Bad Conduct Discharge was appropriate and warranted. Summary: After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Service Record entries, Medical Record documentation, post service veterans treatment records, and the...

  • USMC | DRB | 2013_Marine | MD1301441

    Original file (MD1301441.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 has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities.