Upgrade.Vet

USMC | DRB | 2013_Marine | MD1300925

Original file (MD1300925.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)       20080209 - 20080225     Active:

Period of Service Under Review:
Date of Current Enlistment: 20080226     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20100709      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 01 D a y ( s )
Education Level:        AFQT: 74
MOS: 0651
Proficiency/Conduct M arks (# of occasions): /    Fitness R eports:

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

Periods of CONF :

NJP:

- 20090907 :       Article (Absent without leave)
         Article (Failure to obey order or regulation)
         Awarded: Suspended:

- 20100510 :      Article (Absent without leave)
         Article 89 (Disrespect toward superior commissioned officer)
         Article 92 (Failure to obey order or regulation , 2 specification s )
         Article 107 (False official statement)
         Article 115 (Malingering)
         Awarded: Suspended:

SCM:     SPCM:    CC:

Retention Warning Counseling :

- 20090907 :       For NJP awarded on 20090907 due to violations of Articles 86 and 92, in that on or about 20090818, I failed to return to my appointed place of duty on the scheduled return date, also failing to follow simple instructions directing me how to contact my chain of command if I encountered any difficulties with my return trip.

- Undated :        For recent conviction at Regimental NJP for violation of Articles 86, 89, 92x2, 107 , and 11 5 of the UCMJ.

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. 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 contends his discharge was based on a few incidents of misconduct in 27 months of service.
2 .       The Applicant contends P ost- T raumatic S tress D isorder (PTSD) mitigates his misconduct.

Decision

Date: 20 1 40116          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 a deployment to Iraq in 2009 , conducting combat support 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 86 ( Absent without leave , 2 specifications ), Article 89 ( Disrespect toward superior commissioned officer , 1 specification ), Article 92 (Failure to obey order or regulation, 3 specifications), Article 107 (False official statement, 1 specification), and Article 115 ( Malingering , 1 specification ) . Facing additional charges at a Special Court-Martial, the Applicant requested separation in lieu of trial by court-martial (SILT). Per regulations, to attain approval for a SILT request, servicemembers must have been afforded the opportunity to consult with a qualified counsel and submit a written statement. They must also fully understand the elements of the offense(s) for which they were charged, and they must admit their guilt. They further certify a complete understanding of the negative consequences of their actions and that characterization of service could be Under Other Than Honorable Conditions, which might deprive them of virtually all veterans benefits based upon their current enlistment. The Marine Corps accepted his request and discharged him Under Other Than Honorable Conditions for Separation In Lieu of Trial by Court-Martial.

: (Decisional) ( ) . The Applicant contends his discharge was based on a few incidents of misconduct in 27 months of service. He submitted character reference letters from three Marines he served with and a meritorious promotion to Lance Corporal. During the Applicant’s 2 years and 3 months of service, he received two retention warnings, was found guilty at two NJPs of violating numerous serious UCMJ articles, and was facing a Special Court-Martial when he requested administrative separation to avoid a punitive discharge (i.e., Bad Conduct). An Under Other Than Honorable Conditions discharge is warranted when a member engages in conduct involving one or more acts or omissions that constitute a significant departure from the conduct expected of members of the Naval Service. After a complete review of the records, the NDRB determined his discharge was warranted, proper, and equitable. Relief denied.

: (Decisional) ( ) . The Applicant contends PTSD mitigates his misconduct. The NDRB requested all records of medical treatment, both active duty and post-service, from the Department of Veterans Affairs ( VA ) . The records received from the VA document ed that the Applicant noted “PTSD” on his separation medical assessment form, however, there is no record of any evaluation or diagnosis of PTSD elsewhere in the records. Also, the Applicant did not provide any evidence of a diagnosis of PTSD from any other private mental health treatment provider to document his claim. Lacking any evidence of PTSD, the NDRB determined PTSD did not mitigate his misconduct and further determined his discharge was warranted, proper, and equitable. 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

Similar Decisions

USMC | DRB | 2013_Marine | MD1301231

Original file (MD1301231.rtf) Auto-classification: Denied

of controlled substances)Awarded: Suspended: SCM:SPCM:CC: Retention Warning Counseling: Types of Documents Submitted/reviewedRelated 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...
USMC | DRB | 2012_Marine | MD1200224

Original file (MD1200224.rtf) Auto-classification: Denied

Additionally, the Applicant’s service record documents a period of unauthorized absence from his unit from 29 October 2009 to 27 January 2010 - a violation of Article 86 (Absent without leave - in excess of 30 days) of the UCMJ.The NDRB reviewed the Applicant’s separation proceedings; the Applicant was discharged in accordance with paragraph 6419 of the Marine Corps Separation and Retirement Manual (MARCORSEPMAN)(separation in lieu of trial by court-martial) and was afforded all his...
NAVY | DRB | 2014_Navy | ND1400299

Original file (ND1400299.rtf) Auto-classification: Denied

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. ” Additional Reviews : After a document review has been conducted, former members are...
NAVY | DRB | 2013_Navy | ND1300443

Original file (ND1300443.rtf) Auto-classification: Denied

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.Issues 2-3: (Decisional) () . Relief granted.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, medical and service records, and the discharge process, the Board found Therefore, the awarded characterization of service shall and the...
USMC | DRB | 2015_Marine | MD1500421

Original file (MD1500421.rtf) Auto-classification: 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 remain UNDER OTHER THAN HONORABLE CONDITIONS and the narrative reason for separation shall remain . 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...
USMC | DRB | 2015_Marine | MD1500942

Original file (MD1500942.rtf) Auto-classification: Denied

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. ” Additional Reviews : After a document review has been...
USMC | DRB | 2009_Marine | MD0901735

Original file (MD0901735.rtf) Auto-classification: Denied

The Applicant provided documentation the U.S Department of Veterans Affairs (VA) rated him 100 percent for PTSD, but stated he could not receive paid treatment. However, the NDRB determined partial relief was warranted based on clemency and by majority rule, the NDRB voted to upgrade the discharge characterization to General (Under Honorable Conditions), but voted unanimously not to change the narrative reason for separation.Summary: After a thorough review of the available evidence, to...
NAVY | DRB | 2014_Navy | ND1400458

Original file (ND1400458.rtf) Auto-classification: Denied

The Naval Discharge Review Board, however, included a Navy psychiatrist as a result of the Applicant’s claim of pre-service PTSD.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...
USMC | DRB | 2015_Marine | MD1401486

Original file (MD1401486.rtf) Auto-classification: Denied

DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. ” 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. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities.
USMC | DRB | 2009_Marine | MD0902122

Original file (MD0902122.rtf) Auto-classification: Denied

DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. Clemency is not warranted in this case.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 AS A RESULT OF COURT-MARTIAL (SPCM) OTHER. ” Additional Reviews :...

Search Decisions

Decision Text

USMC | DRB | 2013_Marine | MD1300925

Similar Decisions