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USMC | DRB | 2013_Marine | MD1300780
Original file (MD1300780.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20130124
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)       20071208 - 20071216     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20071217     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20120821      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 05 D a y ( s )
Education Level:        AFQT: 71
MOS: 0352
Proficiency/Conduct M arks (# of occasions): ( 14 ) / ( 14 )        Fitness R eports:

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

Periods of CONF :

Time lost per DD214 : 20080609 - 20080612, 4 days

NJP:

- 20111017 :       Article ( Drunken or reckless operation of vehicle, aircraft, or vessel )
         Awarded: Suspended:

- 20120316 :       Article (Absence without leave , 3 specifications )
         Specification 1: Fail to go at the prescribed time (0745 on 20120221), to substance abuse rehabilitation program treatment appointment
         Specification 2: Fail to go at the prescribed time (0745 on 20120227), to substance abuse rehabilitation program treatment appointment
         Specification 3 : Fail to go at the prescribed time (0745 on 20120228), to substance abuse rehabilitation program treatment appointment
         Article (False official statements, make an official statement to Sgt P, known to be his squad leader, to which the statement was false in that SNM was not in the location he specified (SARP appointment)
         Awarded: Suspended:

- 20120430 :      Article (Failure to obey order or regulation , consuming alcohol while on restriction )
         Awarded: Suspended:

SCM:     SPCM:    CC:





Retention Warning Counseling :

- 20110407 :      For the following deficiencies: Article 86 missing an appointment. Specifically , on 20110406 at 1000 you had a follow up appointment that you did not attend. Having knowledge of the appointment and still violating the same shows a serious lack of adherence to moral and ethical principles , judgment , and maturity.

- 20120316 :       For my non-judicial punishment on 20120316 for violations of the UCMJ, specifically , violation of Article s 86 and 107.

- 20120430 :       For my non-judicial punishment on 20120430 for violation of the UCMJ, specifically , violation of Article 92.

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

          “ ”

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 :        

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 command told him he would receive a General (Under Honorable Conditions) characterization.
2.       The Applicant contends there were numerous areas in his a dministrative separation process that were falsified , and he contends he was deceived by his command by being made to sign documents without the presence of his attorney .
3.       (NDRB Issue) The Applicant ’s PTSD does not mitigate his misconduct.

Decision

Date: 20 1 3 1016            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 in-service diagnosis of P ost-Traumatic Stress Disorder (P TSD ) , 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 was diagnosed with PTSD related to his combat service in Afghanistan . The Applicant’s service record docume nts completion of a deployment to Afghanistan from May to November 200 9 , conducting combat operati ons in support of Operation ENDURING 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 and for o f the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave , 3 specifications of failing to go to substance abuse rehabilitation program treatment appointment s ), Article 92 (Failure to obey order or regulation, consuming alcohol while on restriction) , Article 107 (False official statements ) , and Article 111 (Drunken or reckless operation of vehicle, aircraft, or vessel) . Based on the offenses committed by the Applicant, command administratively processed for separation. When notified of a dministrative separation processing on 27 April 2012 using the procedure, the Applicant exercis ed rights to consult with a qualified counsel and request an administrative board but waived his right to submit a statement to the Separation Authority . However, on 30 April 2012, the Applicant subsequently waived his right to appear before an administrative separation board .

: (Decisional) ( ) . The Applicant contends his command told him he would receive a General (Under Honorable Conditions) characterization. The commanding officer’s recommendation for separation is just that, a recommendation. The Separation Authority (in the Applicant’s case, Commanding General, 2 nd Marine Division) determines whether the allegations in the notification of the basis for separation are substantiated by the evidence. There is no provisional guarantee that a Marine will receive anything that a local commanding officer recommends. Relief denied .

: (Decisional) ( ) . The Applicant contends there were numerous areas in his a dministrative separation process that were falsified, and he contends he was deceived by his command by being made to sign documents without the presence of his attorney. The NDRB presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The documentation provided by the Applicant shows that he initially exercised his right to an administrative board on 27 April 2012 . The Applicant’s statements discuss a second notification on 30 April 2012 where he waived his right to appear before an administrative board. The record shows the Applicant also had his third NJP on 30 April 2012, which shows the Applicant’s circumstances ha d change d from his initial notification. The evidence provided by the Applicant , including a letter from his military attorney, does not refute the presumption of regularity. T he NDRB concluded the command provided full due process and a cted equitably and properly in processing him for separation Under Other Than Honorable Conditions. Relief denied.

: (Decisional) (Board Issue) ( ) . The Applicant was diagnosed with PTSD related to his combat service in Afghanistan. Due to the Applicant’s diagnosis of combat related PTSD, the NDRB conducted a n exhaustive review to determine if the Applicant’s PTSD mitigated his misconduct. The record reflects the Applicant’s alcoholism preceded his combat experience. After a complete review of the records, the NDRB determined PTSD did not mitigate 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.


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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