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USMC | DRB | 2013_Marine | MD1301216

Original file (MD1301216.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20130507

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)       20070122 - 2007062 4     Active: 20070625 - 20100722

Period of Service Under Review:
Date of Current Enlistment: 20100723     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20120607      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 16 D a y ( s )
Education Level:        AFQT: 44
MOS: 0341
Proficiency/Conduct M arks (# of occasions): ( 13 ) / ( 13 )        Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle ACM (2) (2) (3)

NJP:

- 20101230 :       Article (Failure to obey order or regulation, did on or about 20101224, in Bangor, ME, fail to obey an order issued by his commanding officer not to consume alcohol and operate a motor vehicle)
         Awarded: Suspended:

- 20110602 :      Article (Failure to obey order or regulation , 2 specifications )
         Specification 1: On 20110602 on board Camp Lejeune, NC, did disobey a direct lawful order from the Battalion Commander by hazing and demeaning PFC S_
         Specification 2: On board Camp Lejeune, NC did disobey a direct order from the duty Non-Commissioned Officer to reduce the volume of his music in his barracks room on several occasions
         Awarded: Suspended:
SCM:
- 20110802 :       Art icle (Absence without leave, on 20110706 failed to report to his appointed place of duty)
         Art icle ( Assaulting or willfully disobeying superior commissioned officer , disobeyed a direct lawful order from his Commanding Officer, by not checking in for restriction)
         Art icle ( Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer , 4 specifications )
         Specification 1: Display disrespectful language and conduct toward a Staff Non-Commissioned Officer
         Specification 2: Fail to obey a lawful order to wit: consumed alcohol while on restriction
         Specification 3: F ailed to remain in his room after being instructed by the Battalion Officer of the D ay
         Specification 4: Failed to remain in the Battalion Duty hut after he was instructed to do so by the Battalion Officer of the D ay
         Art icle ( Provoking speeches or gestures , on or about 20110712 , made threatening comments and provoking gestures toward the Battalion Officer of the D ay)
         Art icle (Assault, on or about 20110711, did physically assault A_ L_, a D omino’s P izza employee, by throwing her into a wall)
         Art icle (General A rticle, on or about 20110712 , was drunk and disorderly)
         Sentence : (20110804-20110825, 22 days)

SPCM:    CC:

Retention Warning Counseling :

- 20110622 :       For YOUR Battalion level NJP for violating Article 92 x 2: Failure to obey order or regulation. You received the following punishment: 60 days restriction and forfeiture of $455.00 for two months

Administrative Corrections to the Applicant’s DD 214

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

         “ CONTINUOUS HONORABLE ACTIVE SERVICE FROM 070625 UNTIL 100722 ”

The NDRB will recommend to the Commandant of the Marine Corps 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 :

Pertinent Regulation/Law

A. Paragraph 6210, MISCONDUCT , 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 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 P ost -T raumatic S tress D isorder (PTSD) was the underlying cause of his misconduct.

Decision

Date : 20 1 3 0717 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 stated that he was diagnosed with PTSD related to his combat service in Afghanistan . The Applicant’s service record documents completion of a deployment in the Helmand Province of Afghanistan in 2010 conducting combat operations in support of Operation ENDURING FREEDOM. The Applicant was wounded in action on 3 April 2010 and was awarded the Purple Heart medal. The Applicant’s record also documents a combat deployment 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 standards of equity and propriety. The Applicant’s record of service included 6105 counseling warning, for o f the Uniform Code of Military Justice (UCMJ): Article 92 ( Failure to obey order or regulation , 3 specifications) , and for of the UCMJ: Article 86 ( Absence without leave , 1 specification of less than 24 hours), Article 90 ( Assaulting or willfully disobeying superior commissioned officer , 1 specification of not checking in while on restriction), Article 91 ( Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer , 4 specifications of disrespectful language, drinking alcohol while on restriction, failing to remain in his room while on restriction, and failing to obey instructions from the officer of the day), Article 117 ( Provoking speeches or gestures , 1 specification of provoking gestures), Article 128 (Assault , 1 specification of throwing a female into a wall), and Article 134 (General A rticle , 1 specification of drunk and disorderly conduct). Based on the offenses committed by the Applicant, command a dministratively processed for separation. When notified of a dministrative separation processing using the procedure, the Applicant waived rights to consult with a qualified counsel, submit a written statement, and request an administrative board .

: (Decisional) ( ) . The Applicant contends PTSD was the underlying cause of his misconduct. In determining discharge characterization of service, the Applicant’s conduct forms the primary basis for consideration. The Applicant’s in-service conduct included two NJPs and a Summary Court-Martial for multiple serious violation s of the UCMJ; this was a willful failure to meet the requirements of his contract honorably. However, o n 22 August 2011, while confined to the Naval Consolidated Brig in Charleston, South Carolina , the clinical services department diagnosed the Applicant with combat - related PTSD. The Applicant was screened for PTSD on 21 December 2011 by his unit’s medical officer and determined to suffer fro m combat stress. The Applicant was treated for alcohol dependence in January 2011 following a civilian arrest for DUI . After his discharge, the Applicant sought mental health treatment for PTSD. The Applicant ’s official military service record diagnosis of PTSD, depression, anxiety, nightmares, and alcohol dependence support the Applicant’s contention that PTSD was a mitigating factor associated with his misconduct. After a complete review of the records, the NDRB determined the unique circumstances of this case, the documented PTSD diagnosis, and the Applicant’s meritorious service in combat and Purple Heart warranted additional consideration. By a vote of 5-0, the NDRB determined PTSD mitigated his misconduct and determined relief with an upgrade to General is warranted. Relief granted.

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 | MD1301216

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