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USMC | DRB | 2013_Marine | MD1301126
Original file (MD1301126.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20130430
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)       20060707 - 20060910     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20060911     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20100507      H ighest Rank:
Length of Service : Y ea rs M on ths 27 D a ys
Education Level:        AFQT: 63
MOS: 0311
Proficiency/Conduct M arks (# of occasions): /          Fitness R eports:

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

Periods of UA / CONF : UA: 20100124 - 20100214, 22 days / CONF: 20090911 - 20091004, 24 days, pretrial confinement 20100217 - N ot Found in Record

NJP:              SCM:              SPCM:             CC:

Retention Warning Counseling :

- 20090406 :      For failure to obey order or regulation. Speeding in excess of 15 MPH , 79 MPH in a 55 MPH zone.

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

          “ ”

The NDRB will recommend to the Commandant of the Marine Corps , MMSB-13, that the DD 214 be corrected as appropriate.
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 :        


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

Applicant’s Issues

 1 .       The Applicant contends personal problems and lack of support from his command mitigate his misconduct.
2 .       The Applicant contends his post-service conduct warrants consideration for an upgrade.
 3 .       The Applicant contends his in-service conduct and performance warrants consideration for an upgrade.
4 .       The Applicant contends P ost-Traumatic Stress Disorder (P TSD ) was a mitigating factor in his misconduct.

Decision

 Date: 20 1 4 0212            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. A review of the Applicant’s records shows that he deployed to Iraq from February 2008 to October 2008 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 eq uity and propriety. The Applicant’s record of service included one 6105 counseling warning but no misconduct resulting in nonjudicial punishment or court-martial. However, the Applicant ’ s record indicates that his command referred charges to a Special Court-Martial for violating Uniform Code of Military Justice (UCMJ) Article (Absence without leave, 24 January 2010 to 15 February 2010) and Article 112a (Wrongful use, possession, etc., of controlled substances , marijuana) . Facing confinement, a fine, reduction in rank, and a punitive discharge as the result of a Special Court-Martial conviction, the Applicant requested separation in lieu of trial by court-martial. In the request for discharge, the Applicant noted that his counsel had fully explained the elements of the offenses for which he was charged and that he was guilty of those offenses. He certified 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. Commander, 2 nd Marine Division approved the request on 21 April 2010 and discharged the Applicant Under Other Than Honorable Conditions for Separation In Lieu of Trial by Court-Martial.
: (Decisional) ( ) . The Applicant contends personal problems and lack of support from his command mitigate his misconduct. While the Applicant may feel that his personal problems were a contributing factor to his misconduct, they do not mitigate his disobedience of the orders and directives that regulate good order and discipline in the Naval Service, demonstrating he was unsuitable for further service. There is no evidence in the record, nor did the Applicant provide any documentation, to show that his command did not provide support. The NDRB determined his personal problems did not mitigate his misconduct, and his discharge was proper and equitable. Relief denied.

: (Decisional) ( ) . The Applicant contends his post-service conduct warrants consideration for an upgrade. The NDRB considers 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. The Applicant provided a personal statement and three character references. The Applicant could have provided documentation as detailed in the Post-Service Conduct paragraph in the Addendum , 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 Board determined the characterization of service received was appropriate considering the length of service and UCMJ violations. Relief denied.

: (Decisional) ( ) . The Applicant contends his in-service conduct and performance warrant s consideration for an upgrade . The Applicant stated on his DD Form 293 , “I served my country with honor and integrity , I am proud to have served in the Armed Forces , and I want my record to reflect my exemplary performance as an infantryman in the United States Marine Corps . ” Since the Applicant was discharged before the end of his active obligated service, t he 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 a combat tour in Iraq and charges being referred to a Special Court-Martial, 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.
Issue 4: (Decisional) ( ) . The Applicant contends PTSD was a mitigating factor in his misconduct. The Applicant stated on his DD Form 293 that he was diagnosed with combat - related PTSD by the Department of Veterans Affairs (VA). The NDRB requested all records of medical treatment, both active duty and post-service, from the VA. The records received from the VA failed to document any diagnosis or any findings of PTSD or other mental health concerns. The records do document that because the Applicant served in a combat zone, two appointments were scheduled to evaluate the Applicant for PTSD, however, the Applicant failed to show for both appointments. Moreover, the Applicant did not provide any evidence of a diagnosis of PTSD from any other private mental health treatment provider to document his claim. The NDRB found no evidence in the record of any indications of, or diagnosis for, PTSD. Additionally, there is no evidence in either the Applicant’s service record, or the documentation he provided, that demonstrated any problems or symptoms manifesting during his enlistment from his service in Iraq. Furthermore, the Applicant’s record does not document any attempts to seek help for any combat - stress-related symptoms while in service. The N DRB determined PTSD did not mitigate his misconduct, and his discharge for separation in lieu of trial by court-martial 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.

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 .


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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