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USMC | DRB | 2013_Marine | MD1301268
Original file (MD1301268.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20130522
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)       20060125 - 20060220     Active:            20060221 - 20090913

Period of Service Under Review:
Date of Current Enlistment: 20090914     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20130201      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 19 D a y ( s )
Education Level:        AFQT: 72
MOS: 0231/0341
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle (3) (3) CoC

Periods of UA / CONF :

NJP:

- 20110614 :      Article (Failure to obey order or regulation, having knowledge of a lawful order not to consume alcohol, on or about 20110530, failed to obey the same by wrongfully consuming vodka and becoming intoxicated)
         Article 112 (Drunk on duty, in that SNM was at Puhakuloa Training Area, on or about 20110530, found drunk while on duty)
         Awarded: Suspended:

- 20120530 :       Article (Failure to obey order or regulation, o n 20120512 at or about 0420 SNM was pulled over for failing to maintain his lane of travel. Upon further inspection, HPD smelled a strong odor of alcohol emitting from his person. SNM was then given a field sobriety test , which he failed. SNM was given a Breathalyzer, which he registered a BAC of . 25)
         Awarded: Suspended:

- 20121101 :      Article (Failure to obey order or regulation, on the morning of the 29th of October, it was discovered that SNM came to work under the influence of alcohol)
         Awarded: Suspended:

- 20121205 :      Article (General A rticle, disorderly conduct, drunkenness, on or about 20121203 at or about 1500 SNM was detained by PMO for being on duty after consuming m u l t iple bottles of vodka and mixing rubbing alcohol with soda)
         Awarded: Suspended:

SCM:     SPCM:    CC:

Retention Warning Counseling :

- 20110614 :       For the following misconduct: specifically my Battalion Level NJP for violation of Article 92: failure to obey order and regulation, Article 112: drunk on post.

- 20120530 :       For the following deficiencies: on 20120512 you were subject to Battalion level NJP, disobeying a lawful order or regulation under Article 92 of the UCMJ.

- 20121101 :       For being counseled by the company Commander, Headquarters and Service Company, 1st Battalion , 3rd Marines concerning your recent non-judicial punishment. You appeared before the Company Commander on 20121101 for violation of Article 92 in that on or about 20121029 at or about 0700 you disobeyed a lawful order. During the proceedings, you pled guilty to Article 92, and the Company Commander awarded the following punishment: forteiture of $462.00, for one month, 14 days restriction, with the forfeiture of $462.00 suspended .

- 20121205 :       For the following deficiencies: on 20121205 you were subject to Battalion level NJP under the UCMJ for violation of Article 134, disorderly conduct, drunkenness in that you were detained by PMO for being drunk on duty after consuming multiple bottles of vodka and mixing rubbing alcohol with soda.

Administrative Corrections to the Applicant’s DD 214

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

          “ MISCONDUCT ”

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 his in-service conduct warrants consideration for an upgrade.     
2.       The Applicant contends Post-Traumatic Stress Disorder ( PTSD ) mitigates his misconduct.
3 .       The Applicant contends his command ignored the recommendation that he go before a medical evaluation board.

Decision

Date: 20140116            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 from March to September 200 7 and July 2008 to February 2009 , 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 governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Applicant’s record of service in his current enlistment included 6105 counseling warnings and for o f the Uniform Code of Military Justice (UCMJ): Article (Failure to obey order or regulation) and Article (General A rticle, disorderly conduct, drunkenness). Based on the offenses committed by the Applicant, command administratively processed for separation. The NDRB did not have the Applicant’s administrative separation package to determine whether or not the Applicant waived rights to consult with a qualified counsel, submit a written statement, and request an administrative board or a General Court-Martial Convening Authority review . However, the Applicant has a separation code of HKA1 on his DD Form 214, which indicates he waived his right to appear before an administrative separation board .

Issue 1: (Decisional) (Propriety/Equity) RELIEF NOT WARRANTED. The Applicant contends his in-service conduct warrants consideration for an upgrade. The Applicant received an Honorable discharge for his first enlistment from February 2006 to September 2009. Each period of enlistment is an independent obligation and characterization is determined for that specific period of time. During his second enlistment, he received four retention warnings and was found guilty of numerous UCMJ offenses at four NJPs. T he Applicant was administratively separated and not separated upon expiration of enlistment or fulfillment of service obligation. The 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 in his current enlistment , the NDRB determined the Applicant e ngaged 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.
: (Decisional) ( ) . The Applicant contends PTSD mitigates his misconduct. The Applicant provided an in-service mental health diagnos i s from 29 June 2012 where he was diagnosed with PTSD, major depressive disorder, and alcohol dependence. The Applicant’s separation code of HKA1 indicates he was given the opportunity to request an administrative board where he would have had the opportunity to bring forth mitigating factors , to include his PTSD , but he waived that right, thus accepting the discharge recommended in the letter of notification. Though the Applicant may feel that PTSD was the underlying cause of his misconduct, the record reflects the Applicant displayed willful and persistent misconduct . Likewise, t he 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 an exhaustive review, the NDRB determined PTSD did not mitigate the Applicant’s misconduct. Relief denied.

: (Decisional) ( ) . The Applicant contends his command ignored the recommendation that he go before a medical evaluation board. Department of Defense regulations provide that disciplinary separations supersede disability separations. 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 Under Other Than Honorable discharge is authorized, the medical board report is filed in the member’s terminated health record. The NDRB discerned no impropriety in the Applicant’s separation for a pattern of misconduct. 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

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