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USMC | DRB | 2013_Marine | MD1300917
Original file (MD1300917.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20130327
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)       20041230 - 20050109     Active:  

Period of Service Under Review:
 Date of Current Enlistment: 20050110     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20090109      H ighest Rank:
Length of Service : Y ea rs M on ths 00 D a ys
Education Level:        AFQT: 45
MOS: 0311
Proficiency/Conduct M arks (# of occasions): /          Fitness Reports:

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

Periods of UA / CONF :

NJP:

- 20050718 :      Article (Failure to obey order or regulation - underage drinking)
         Awarded: Suspended:

- 20060425 :      Article (Drunken or reckless operation of vehicle, aircraft, or vessel)
         Awarded: Suspended:

- 20070605 :      Article (Failure to obey order or regulation - wrongfully hazing PFC by verbally berating him and forcing him to take a shower with h is clothes on)
         Awarded: Suspended:

- 20070814 :      Article (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer , 2 specifications )
         Specification1: Disrespectful in comments toward Cpl
         Specification 2: Slowly departing room while having the door shut on him and attempted to force his way back into the room. At such time Marines in the local area restrained him until he was calm and the situation had concluded .
         Awarded: Suspended:

SCM:     SPCM:    CC:






Retention Warning Counseling:

- 20070510 :      For being kicked off the rifle range for shooting 9 shots in the sitting position rather than the prescribed 5 shots during the qualification course of fire. When confronted with this , SNM became disrespectful to the staff of the rifle range and was kicked off the firing detail. This action is a direct violation of Article 92. Failure to abide by the rules and regulations of any work station will not be tolerated, nor will any disrespect to any higher rank ing person in the Marine Corps.

- 20070605 :      For pattern of misconduct.

- 20080805 :       For unauthorized absence, when I failed to provide adequate appointment paperwork on 20080804 after having been previously verbally counseled by 1stSgt to do so. Furthermore, I repeatedly failed to let my Chain of Command know throughout the work day of my whereabouts and not checking in with my Chain of Command at the end of my work day.

NDRB Documentary Review Conducted (date):        20130129
NDRB Documentary Review Docket Number:   MD12-00794
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 contends Post-Traumatic Stress Disorder (PTSD) mitigate s his misconduct.
2.       The Applicant contends his discharge characterization is inequitable based on his in-service performance and conduct.
3.       The Applicant contends his post-service conduct is worthy of consideration for an upgrade.

Decision

 Date: 20 1 3 1107            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, 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’s service record documents completion of two deployment s to Iraq conducting combat operations 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 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 92 ( Failure to obey order or regulation, 2 specifications ), Article 111 ( Drunken or reckless operation of a vehicle, aircraft, or vessel ), and Article 91 ( Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer, 2 specifications ) . The Applicant was discharged at the end of his obligated service with a characterization of General (Under Honorable Conditions).

: (Decisional) ( ) . The Applicant contends PTSD mitigate s his misconduct. Although the Applicant was not diagnosed with PTSD while on active duty, he submitted documentation that indicates he was diagnosed with PTSD post-service and assigned a 100 percent disability rating by the U.S. Department of Veterans Affairs. A review of the Applicant’s record did reveal that he deployed in support of Operation IRAQI FREEDOM on two occasions , from June 2006 to January 2007 with the 24 th Marine Expeditionary Unit and from September 2 007 to April 2008 with 1 st Battalion, 8 th Marines. The Applicant was awarded a Comba t Action Ribbon (CAR) for action s during his second deployment to Iraq. The Applicant’s in-service conduct included four NJPs for misconduct , two of which occurred before his first deployment and all occurred before his second combat deployment for which he was awarded the CAR. Though the Applicant may feel that PTSD was the underlying cause of his misconduct, the record reflects willful misconduct and 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 did not mitigate the Applicant’s misconduct. Relief denied.

: (Decisional) ( ) . The Applicant contends his discharge characterization is inequitable based on his in-service performance and conduct . After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, in conjunction with the Applicant’s testimony, the NDRB discerned no impropriety but did discern an inequity in the characterization of the Applicant’s service. Based on the Applicant’s performance of duty and conduct during two combat deployments in support of Operation I RAQI FREEDOM, and particularly after reading the letters of recommendation from his former platoon commander and battalion sergeant major, the NDRB determined the Applicant’s service was honest and faithful , and the positive aspects of his service outweighed the negative aspects of his conduct . Therefore, it is appropriate to characterize his service as Honorable. Relief granted.


: (Decisional) ( ) . The Applica nt contends his post-service conduct is worthy of consideration for an upgrade. After a careful review of the Applicant’s post-service documentation and official service records, and taking into consideration his testimony , and the facts and circumstances unique to this case, the NDRB determined relief is not warranted based this issue. 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 but not equitable. Therefore, the awarded characterization of service shall and 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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