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USMC | DRB | 2013_Marine | MD1300903
Original file (MD1300903.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20130402
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)       20030920 - 20040808     Active:  

Period of Service Under Review:
 Date of Current Enlistment: 20040809     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20080808      H ighest Rank:
Length of Service : Y ea rs M on ths 00 D a ys
Education Level:        AFQT: 35
MOS: 0311
Proficiency/Conduct M arks (# of occasions): ( 13 ) / ( 13 )        Fitness Reports:

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

Period of CONF :

NJP:

- 2005011 0 :      Article (Larceny , 3 specifications )
         Specification 1: S tole a DVD p layer from his fellow Marine’s barracks
         Specification 2: S tole a c ell phone from his fellow Marine’s barracks
         Specification 3: S tole an electric r azor from his fellow Marine’s barracks
         Awarded: Suspended:

- 20060728 :      Article (Failure to obey order or regulation , by consuming alcohol )
         Article (Drunken or reckless operation of a vehicle, aircraft, or vessel)
         Awarded: Suspended:

- 20061128 :      Article (Absence without leave , 2 specifications )
         Specification 1: F rom 2200, 07 September 2006 until 0400, 08 September 2006
         Specification 2: A t 0600, 28 November 2006 failed to go to appointed place of duty
         Awarded: Suspended:

- 20070129 :      Article (Absence without leave , on or about 0230, 20 January 2007, was absent from appointed place of duty, i.e. , the USS Bataan, and did go ashore in Palermo, Sicily without authority )
         Article (Fai lure to obey order or regulation, on or about 0230, 20 January 2007, disobeyed an order of the Battalion Commander assigning him to a liberty restriction by wrongfully debarking without signing out of the liberty logbook, debarking without an NCO escort, and remaining ashore beyond his prescribed expiration time of 2000 )
         Awarded: Suspended:



- 20080213 :      Article (Absence without leave , 2 specifications )
         Specification 1: Left physical training formation without proper authorization
         Specification 2: Failure to be at appointed place of duty , 0730-1020, 20071217
         Article (Failure to obey order or regulation , 2 specifications )
         Specification 1: Reported for physical training without having a shaven face for PT
         Specification 2: Violated barracks and ground policy by having a female in his barracks after hours
          Awarded: Suspended:

SCM:     SPCM:    CC:

Retention Warning Counseling:

- 20061128 :      For violation of the UCMJ Article 86 (Unauthorized absence), reference NJP dated 20061128

- 20070124:      For violations of the UCMJ: Article 86 (Unauthorized absence) and Article 9 2 (Failure to obey order or regulation), reference NJP dated 20070129

NDRB Documentary Review Conducted (date):        20110120
NDRB Documentary Review Docket Number:   MD10-00283
NDRB Documentary Review Findings:                 Proper as issued and that no change is warranted.
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. Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 1 September 2001 until Present, Paragraph 1005, DISCHARGE FOR EXPIRATION OF ENLISTMENT OR FULFILLMENT OF SERVICE OBLIGATION .
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 seeks an upgrade to qualify for the G.I. Bill.
2.       The Applicant contends his in-service performance and conduct warrant an upgrade .
3 .       The Applicant contends his post-service conduct warrants an upgrade.
 4 .       The Applicant contends P ost- T raumatic S tress D isorder (PTSD) mitigate s his misconduct.
Decision

 Date: 20 1 3 1025            Location: Washington D.C .         R epresentation : DAV

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 should have included a member who is a physician, clinical psychologist, or psychiatrist. However, as the Applicant only brought forward PTSD as an issue on the day of his hearing, the NDRB was unable to include a member who wa s a physician, clinical psychologist, or psychiatrist. With the Applicant’s permission, the personal appearance hearing continued without a physician, clinical psychologist, or psychiatrist.

 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 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 121 ( Larceny, 3 specifications) , Article 92 ( Failure to obey order or regulation, 4 specifications ), Article 111 (Drunken or reckless operation of a vehicle, aircraft, or vessel), and Article 86 (Absence without leave, 5 specifications). The Applicant reached the end of his active obligated service and was discharged with a General (Under Honorable Conditions) characterization of service.
: (Nondecisional) The Applicant seeks an upgrade t o qualify for the G.I. Bill. 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. 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.
: (Decisional) ( ) . The Applicant contends his in-service performance and conduct, specifically during his combat deployment to Iraq from January 2005 to February 2006 , warrant an upgrade. The Applicant provided the NDRB with a letter from his former company c ommander that cites his honorable service while deployed to Iraq from June 2005 to February 2006. In accordance with Paragraph 1004 of the Marine Corps Separation and Retirement Manual, an Honorable characterization of service upon the expiration of active duty is appropriate when the quality of a Marine’s service has met the standards of accepted conduct and performance of duty for military personnel. Therefore, characterization of service will be Honorable for Marines with average Proficiency marks of 3.0 or higher and average Conduct marks of 4.0 or higher. The Applicant completed his obligated service and his overall marks for proficiency and conduct were 3.9 and 3.8, respectively. Therefore, a General (Under Honorable Conditions) was proper at the time of discharge. After a thorough review of the records, supporting documents, facts, and taking into consideration the Applicant’s testimony and recommendation from his former company commander , the NDRB determined his service was honest and faithful but significant negative aspects of his conduct outweighed the positive aspects of his service. Relief denied.



: (Decisional) ( ) . The Applicant contends his post-service conduct warrants 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. Although the Applicant stated he maintains employment, cares for his daughter, and was attending college, he failed to provide any documentary evidence on his behalf for post-service consideration. The Applicant could have provided documentation as detailed in the Post-Service Conduct paragraph in the A ddendum , however, completion of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case by case basis to determine if post-service conduct establishes that the in-service misconduct was an aberration. The NDRB determined the General characterization was equitable. Relief denied.

4 : (Decisional) ( ) . The Applicant contends PTSD from combat actions in Iraq mitigate s his misconduct. The NDRB did not have access to, nor did the Applicant provide, any medical treatment records in suppor t of his contention. T he Applicant did provide documentation with his DD Form 293 that indicates he filed a claim with the Department of Veterans Affairs (VA) in November 2010 f or combat - related PTSD. During his personal hearing, the Applicant p rovided documentation that indicates he was awarded , in 2013, a 30 percent disability rating for PTSD . The Applicant received two 6105 counseling warnings and five NJPs during his enlistment. The Applicant ’ s NJP of 10 January 2005 for violating UCMJ Article 121 (Larceny, 3 specifications) occurred prior to his combat deployment . Though the Applicant may feel that PTSD was the underlying cause of his misconduct, the rec ord reflects willful misconduct. 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. After a thorough review of the Applicant’s record and considering his testimony, the NDRB determined PTSD did not mitigate the Applicant’s misconduct , and his discharge characterization is proper and equitable as issued. Relief denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s testimony, 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 . Because a physician, clinical psychologist, or psychiatrist was not available for his hearing, the NDRB will conduct another hearing if the Applicant so desires, at which time he can present additional evidence of how his PTSD mitigates his misconduct.


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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