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USMC | DRB | 2013_Marine | MD1300819
Original file (MD1300819.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20130228
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)       20080722 - 20080728     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20080729     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20110719      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 21 D a y ( s )
Education Level:        AFQT: 35
MOS: 6048
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:
Awards and Decorations ( per DD 214):      Rifle LoA

Periods of CONF :

NJP:
- 20110609 :       Article (Absence without leave , 2 specifications )
         Specification 1: On 20110519, SNM did without authority go from his appointed place of duty, to wit: Marine Aviation T raining Support Group 33
         Specification 2: On 20110525, SNM did without authority fail to go at the time prescribed to his appointed place of duty, to wit: Marine Aviation Training Support Group 33
         Article ( Assaulting or willfully disobeying superior commissioned officer , o n 20110329, on board Naval Air Station Oceana, SNM did assault L T B_ A_, Department of Defense, who was then known by the accused to be a person then having and in the execution of civilian law enforcement duties, by executing a choke hold with his right arm )
         Art icle ( Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer , 2 specifications )
         Specification 1: On 20110329, on board Naval Air Station Oceana, SNM did willfully disobey GySgt B_ a staff noncommissioned officer, “to calm down and let’s talk” or words to that effect, an order which was his duty to obey
         Specification 2: On 20110329, on board Naval Air Station Oceana, SNM was disrespectful toward Cpl C_ a noncommissioned officer, by rolling his eyes, stating , “ if he doesn’t get respect he isn’t going to give respect” or words to that effect, and by leaving the office in the middle of counseling
         Article 95 ( Resistance, flight, breach of arrest, and escape , on 20110329, on board Naval Air Station Oceana, SNM did resist being apprehended by Cpl G_, a police officer, a person authorized to apprehend the accused )
         Art icle (Assault , on 20110329, on board Naval Air Station Oceana, SNM did assault Aviation S tructural Mechanic Airman M_, US Navy, with his hands and took him to the ground )
         Article (General A rticle , 2 specifications )
         Specification 1: On 20110329, on board Naval Air Station Oceana, SNM was disorderly which conduct was of nature to bring discredit upon the armed forces
         Specification 2: On 20110329, on board Naval Air Station Oceana, SNM did wrongfully communicate to Master-at- A rms Second class H_, US Navy, a threat, to punch him in the face
         Awarded: Suspended:

SCM:     SPCM:    CC:

CIVIL ARREST:

- 20091227 :       Charges: Disorderly Conduct

Retention Warning Counseling :

- 20090115 :       For violation of Article 128 by assaulting another Marine.

- 20100122 :       For the following deficiencies in your conduct as a Marine. On 20091227 you were arrested in Washington , DC for disorderly conduct.

- 20110530 :       For your recent diagnosis of a personality disorder.

- 20110609 :       For the following deficiencies in your conduct as a Marine. On 20110505 failed to appear at NAS Oceana Traffic Court.

- 20110609 :       For your recent NJP for violation of Articles 86 x2, 90, 91 x2, 128, 134 x2 UCMJ, specifically, for unauthorized absence, assaulting an officer, disrespect to noncommissioned officers, and assault.

- 20110622 :       For two incidents on 4 and 6 June 2011, in which you used provoking speeches and gestures toward LCpl Nicholson with the intent to incite a physical altercation.

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 6203.3 CONVENIENCE OF THE GOVERNMENT, 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 he warrants an upgrade for medical reasons.

Decision

 Date: 20131016            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 Post-Traumatic Stress Disorder (PTSD), in accordance with U.S. Code, Title X, Section 1553(d)(1), the Naval Discharge Review Board reviewed the Applicant’s record to see if he deployed in support of a contingency operation and was, as a consequence of that deployment, diagnosed with either PTSD or Traumatic Brain Injury. A review of his record revealed that he did not deploy in support of a contingency operation, and so his case did not warrant an expedited review in accordance with U.S. Code, Title X, Section 1553(d)(1).
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 governmental affairs 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, one civil arrest for disorderly conduct, and for of the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave, 2 specifications), Article 90 (Assaulting or willfully disobeying superior commissioned officer, 1 specification), Article 91 (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer, 2 specifications), Article 95 (Resistance, flight, breach of arrest, and escape, 1 specification), Article 128 (Assault, 1 specification), and Article 134 (General Article, 2 specifications). Competent medical authority diagnosed the Applicant with a Personality Disorder (Narcissistic and Borderline Features). Based on his diagnosis of a Personality Disorder, his command initiated administrative separation processing. When notified of administrative separation processing using the procedure, the Applicant waived rights to consult with a qualified counsel and submit a written statement.
: (Decisional) ( Propriety/Equity ) . The Applicant contends he warrants an upgrade for medical reasons. Pursuant to Marine Corps Separation and Retirement Manual paragraph 6203.3, members may be processed for separation based on a mental health professional’s clinical diagnosis of a P ersonality D isorder when the disorder is so severe that one’s ability to function effectively and perform their duties is significantly impaired, and the individual poses a threat to safety or well being of themselves or others. Competent medical authority diagnosed the Applicant with a Personality Disorder (Narcissistic and Borderline Features) but also diagnosed the Applicant as having non-combat-related PTSD . The Applicant’s diagnosis of PTSD, however, did not automatically qualify him for a medical/disability discharge, or even referral to the Physical Evaluation Board (PEB). Disability separation is reserved for those cases in which a member’s condition, in the opinion of the PEB, precludes him from performing his military duties. Additionally, the decision whether to refer a case to the PEB rests with the individual treating physician and Medical Treatment Facility. Since the Applicant was not referred to the PEB, but administratively separated instead, the NDRB presumes he did not meet the referring criteria.

 The NDRB determined no other narrative reason for separation other than Personality Disorder more clearly describes wh y the Applicant was discharged. 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. Based on the Applicant’s record of service, which included six retention warnings, a civil arrest, and an NJP, the NDRB determined the Applicant’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, and the awarded characterization of service was warranted. The NDRB also determined his non-combat-related 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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