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USMC | DRB | 2013_Marine | MD1300545
Original file (MD1300545.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20130115
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)       20051014 - 20060108     Active:  

Period of Service Under Review:
 Date of Current Enlistment: 20060109     Age at Enlistment:
Period of E nlistment : Years Mont h
Date of Discharge: 20070831      H ighest Rank:
Length of Service : Y ea r M on ths 26 D a ys
Education Level:        AFQT: 36
MOS: 0311/8152
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness Reports:

Awards and Decorations ( per DD 214):      Rifle

Periods of CONF :

NJP:

- 20070202:      Article (Absence without leave 1200, 20070104 until 20070107, 3 days )
         Awarded: Suspended:

- 20070405:      Article (Absence without leave , 2 specifications )
         Specification 1: Fa iled to go to appointed place of duty, Security Post 1530, 20070216
         Specification 2: Absent without authority 0920, 20070220 until 0200, 20070320, 28 days
          Awarded: Suspended:

- 20070713 :      Article (Absence without leave 0800, 20070512 until 2245, 20070513, 1 day )
         Article (General A rticle - breaking restriction)
         Awarded: Suspended:

SCM:             SPCM:            CC:

Retention Warning Counseling:

- 20070202:      For recent NJP held on 20070202 for violation of A rticle 86.

- 20070405 :      For recent NJP held on 20070405 for violation of A rticle 86.

- 20070419:      For Personality Disorder, specifically, you have been diagnosed with adjustment/personality disorder with disturbance of emotions.

- 20070717:      For recent NJP held on 20070713 for violation of A rticle s 86 and 134.

NDRB Documentary Review Conducted (date):        20110627
NDRB Documentary Review Docket Number:   MD10-01486
NDRB Documentary Review Findings:                 Proper as issued and that no change is warranted.
Administrative Corrections to the Applicant’s DD 214

The NDR B did note administrative error s on the original DD Form 214:
         “ MISCONDUCT ”
        
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:                  Other Documentation:    
                  Additional Statements:
         From Applicant:           From/To Representation:           From/To Congress member:        

                  Pertinent Regulation/Law
A. Paragraph 6210, MISCONDUCT , 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 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 his misconduct was mitigated by panic attacks and anxiety disorder.
2.       The Applicant contends his post-service conduct warrant s consideration for an upgrade.

Decision

Date: 20 1 3 0821            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 6105 counseling warnings and for o f the Uniform Code of Military Justice (UCMJ): Article (Absence without leave, 4 specifications: [1] 1200, 20070104 until 20070107, 3 days; [2] Failed to go to appointed place of duty, Security Post 1530, 20070216; [3] Absent without authority 0920, 20070220 until 0200, 20070320, 28 days; [4] 0800, 20070512 until 2245, 20070513, 1 day ) and Article (General A rticle - breaking restriction ) . Based on the offenses committed by the Applicant, command administratively processed for separation. When notified of a dministrative separation processing using the procedure, the Applicant exercised right to consult with a qualified counsel, but waived his rights to submit a written statement and request an administrative board .

: (Decisional) ( ) . The Applicant contends his misconduct was mitigated by p anic attacks and anxiety disorder that have been determined to be service-connected . 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. On 12 April 2007 the Applicant was diagnosed with adjustment disorder with disturbance of emotions and conduct and personality disorder by mental health professionals. It is evident from the records and from the Applicant ’s statements to the NDRB that he was afforded medical help from the Marine Corps but he was not willing or able to accept or adhere to the treatment plan prescribed for him. Instead, the Applicant went into an unauthorized absence status to find relief from the Marine Corps. The Applicant’s c ompany c ommander stated , “ H e has chosen to place himself in an unauthorized absence status on four occasions without re gard to the consequences of his actions. He is a troubled Marine who often chooses to make bad decisions in hopes of resolving personal family issues that others are better prepared to resolve.” The record reflects the Applicant was recommended for administrative separation as a result of his diagnosed mental condition. However, due to his frequent unauthorized absences that equate d to a pattern of misconduct and because Department of Defense regulations stipulate that disciplinary separations take precedence over other types of separation, to include medical, his Commanding Officer recommended t he Applicant be separated for misconduct with a General (Under Honorable Conditions) characterization. The Separati on Authority , however, determined the Applicant should be discharged Under Other Than Honorable Conditions . B ased on the facts and circumstances unique to this case , his testimony, and taking into consideration the Applicant’s commanding officer’s favorable recommendation for characterization, the NDRB determined partial relief is warranted. By majority rule, the NDRB voted to upgrade the Applicant’s discharge to General (Under Honorable Conditions) with no change to the narrative reason for separation . Partial relief granted. Full relief to Honorable was not granted , because the Applicant had a pattern of misconduct and was responsible for his actions.




: (Decisional) ( ) . The Applicant contends his post-service achievements as evidenced by his steady employment in two jobs and good behavior warrant consideration for an upgrade. The NDRB is authorized to consider post-service factors in the re-characterization of a discharge. However, there is no law, or regulation, that provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to exist during the period of enlistment in question. The NDRB determined the Applicant’s post-service achievements did not warrant an upgrade. 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 the discharge was proper . The Board determined the Applicant was afforded adequate medical help , and he was responsible for his actions. However, based on circumstances unique to this case, his testimony, and taking into consideration the Applicant’s commanding officer’s favorable recommendation for characterization , the Board determined partial relief was warranted on equitable grounds . Therefore, the awarded characterization of service shall but 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 .


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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