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USMC | DRB | 2013_Marine | MD1300876

Original file (MD1300876.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20130307

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)       20020731 - 20030706     Active:

Period of Service Under Review:
Date of Current Enlistment: 20030707     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20061221      H ighest Rank:
Length of Service : Y ea rs M on ths 1 5 D a ys
Education Level:        AFQT: 38
MOS: 3112
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

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

Periods of CONF :

Time Lost (per DD 214): 20050317-20050414, 29 days ; 20060920-20061010, 21 days

NJP:

- 20050328 :       Details N ot Found in Record [Date extracted from Commanding Officer’s letter dated 20050415]
         Awarded: NFIR Suspended: Suspension vacated 20050415

- 20050415 :      Article (Absence without leave , 2 specifications )
         Specification 1: On 20050310 -20050311 , 1 day
         Specification 2: On 0730, 20050314-20060315
         Article 91 (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer)
         Article 92 (Failure to obey order or regulation , 2 specifications )
         Specification 1: Wrongfully failing to check out and remain with a liberty buddy during off-base liberty
         Specification 2: Wrongfully going and remaining off base between the hours of 2400 and 0500 while a red card holder
         Awarded: Suspended:

- 20060830 :      Article (Failure to obey order or regulation , wrongfully found with a female in his barracks room, failed to log-in female guest with the duty )
         Article (General A rticle)
         Awarded: Suspended:

SCM:     SPCM:    CC:

Retention Warning Counseling :

- 20050414 :       For absence without leave, insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer, and failure to obey order or regulation.

- 20060829 :       For unauthorized absence. While attending the MASP class , you failed to be at your appointed place of duty on three separate occasions.

- 20060830 :       For failure to obey order and offenses involving disorder and neglects to the prejudice of good order and discipline in the armed forces.

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 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 .

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

Applicant’s Issues

1.       The Applicant seeks an upgrade to qualify for service - related benefits.
2.       The Applicant seeks an upgrade to become eligible to join veterans groups .
3.       The Applicant contends he had an honorable career until returning from deployment.
4.       The Applicant contends his misconduct is mitigated by Post-Traumatic Stress Disorder ( PTSD ) and Traumatic Brain Injury ( TBI ) .
5.       The Applicant contends he should have received a medical discharge.

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 and TBI, 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. A review of the Applicant’s records reveals he deployed to Iraq 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 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. T he Board did complete a thorough review of the circumstances that led to discharge and the discharge process to ensure discharge met the pertinent sta ndards 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 86 ( Absence without leave, 2 specifications) , Article 91 ( Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer) , Article 92 (Failure to obey order or regulation, 3 specifications), and Article 134 ( General A rticle). The Applicant’s service record indicate s he was charged with further violation s of the UCMJ and was eventually separated in lieu of trial by court-martial (SILT). The NDRB did not have the Applicant’s complete administrative separation package, however , to receive a SILT discharge, a service member must request this type of discharge, must admit guilt to the charges, and must acknowledge 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.

: (Nondecisional) The Applicant seeks an upgrade to qualify for service - related benefits. The Applicant stated on his DD Form 293 that he is in need of medical and mental health care for a variety of military connected conditions including PTSD and TBI. Additionally, the Applicant stated that he is the only able - bodied man in his family and is homeless. 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.

: (Nondecisional) The Applicant seeks an upgrade to become eligible to join veterans groups so he can converse with Operation IRAQI FREEDOM peers. Th e NDRB is not authorized to grant upgrades to allow Applicants to be eligible for membership in veterans groups. The NDRB is only authorized to review the propriety and equity of a discharge.

: (Decisional) ( ) . The Applicant contends he had an honorable career until returning from deployment. The record indicates the Applicant was found guilty at NJP on two occasions prior to his Iraq deployment , which began in September 2005 and ended in March 2006. The Applicant was erroneously awarded a Good Conduct Medal, which requires three years of misconduct-free service. During the Applicant’s first three years of service, he was found guilty of numerous UCMJ violations at two NJPs. Additionally, the Applicant received NJP on 30 August 2006 and was separated in lieu of trial by court-martial for further violations of the UCMJ. 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, the NDRB determined the Applicant engaged in conduct involving one or more acts or omissions that constituted a significant departure from the conduct expected of members of the Naval Service, and the awarded characterization of service was warranted. Relief denied.

4 : (Decisional) ( ) . The Applicant contends his misconduct is mitigated by PTSD and TBI. The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue. The NDRB requested from the Department of Veterans Affairs, but did not receive, the Applicant’s medical treatment records. Furthermore, the NDRB did not find any reference to a medical diagnosis of PTSD or TBI in the Applicant’s service re cord s , nor did the Applicant provide any documentary evidence of a medical diagnosis by competent medical au thority to support his claim. Though the Applicant may feel that PTSD and TBI were the underlying cause of his misconduct, the record reflects willful misconduct that demonstrated he was unfit for further service. The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions. The NDRB determined PTSD and TBI did not mitigate his misconduct. Relief denied .

5: (Decisional) ( ) . The Applicant contends he should have received a medical discharge. Per regulations, the initiation and submission of medical boards are at the discretion of the individual physician. There is no indication in the evidence of record or in the documentation submitted by the Applicant that the Applicant was recommended for or processed for a medical board by proper authority. Further, the evidence of record does not indicate that proper authority erred by not initiating a medical board for the Applicant. Therefore, the NDRB found the Applicant’s issue to be without merit. 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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USMC | DRB | 2013_Marine | MD1300876

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