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USMC | DRB | 2013_Marine | MD1301269

Original file (MD1301269.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20130515

Characterization of Service Received:

Narrative Reason for Discharge:

Authority for Discharge: MARCORSEPMAN

Applicant’s Request:      Characterization change to:
         Narrative Reason change to : APPROPRIATE DISABILITY NARRATIVE

Summary of Service

Prior Service:
Inactive:         USMCR (DEP)       20030508 - 20030615     Active:          20030616 - 20070625
                                             20070626 - 20110517

Period of Service Under Review:
Date of Current Enlistment: 20110518     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20130416      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 29 D a y ( s )
Education Level:        AFQT: 72
MOS: 3043
Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle (2) (2) (2) (3) (2) (3) Co A MM

Periods of CONF :

NJP:             SCM:             SPCM:          CC:

Retention Warning Counseling :

- 20120521 :       For unauthorized absence. Specifically, failing to go to your appointed place of duty at the time prescribed on 20120502.

- 20120720 :       For complacency and lack of supervision, specifically, failing to ensure incidental drivers were certified to operate Government vehicles.

- 20121022 :       For the following deficiencies: O n 20121003 you admitted to drinking alcohol the night prior, which was the day after returning from inpatient treatment at the Substance Abuse Rehabilitation Program aboard Naval Submarine Base, Point Loma, CA, for your driving under the influence of alcohol arrest on 20121016, and your continued misconduct.

- 20121221 :       For failure to obey an order or regulation and unauthorized absence, more specifically , on 20121207 you failed to obey a lawful order given by GySgt B_, by failing to participate in the Combat Fitness Test at Hilltop Field o n the Presidio of Monterey, CA.

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 030616 UNTIL 110517 ”

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. The Marine Corps Separation and Retirement Manual, (MCO P1600.19F), effective 1 September 2001 until Present, Paragraph 6209, ALCOHOL REHABILITATION FAILURE.

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 narrative reason for separation should be changed to an appropriate disability narrative.
2 .       The Applicant contends combat - related P ost- T raumatic S tress D isorder (PTSD) and Traumatic Brain Injury (TBI) mitigate his alcohol-related misconduct , and he was not treated for PTSD despite asking for assistance. He also contends the Separation Authority did not consider his PTSD diagnosis when determining his General discharge for Alcohol Rehabilitation Failure .

Decision

Date : 20 1 3 1016          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 and TBI, 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 three deployment s to Iraq in support of Operation IRAQI FREEDOM from February to August 2004, S eptember 2006 to April 2007, and September 2007 to March 2008.

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 sta ndards of equity and propriety. The Applicant’s record of service included 6105 counseling warnings in his current enlistment. The Applicant was arrested by civilian authorities for driving under the influence of alcohol. The Applicant was assigned to inpatient alcohol rehabilitation treatment , however, he failed his treatment program after consuming alcohol following the treatment . Based on the Applicant’s alcohol rehabilitation failure , command administratively processed for separation. The Applicant was also notified of administrative separation for a Pattern of Misconduct. 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 separation code of HPD1 on the Applicant’s DD Form 214 indicates he waived his right to an administrative board. After considering the Applicant’s record of service in his current enlistment, the Separation Authority determined he met the bases of separation for Alcohol Rehabilitation Failure and Pattern of Misconduct and further determined the primary basis for separation should be Alcohol Rehabilitation Failure with an Under Honorable Conditions (General) characterization of service.

: (Nondecisional) The Applicant contends his narrative reason for separation should be changed to an appropriate disability narrative. 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 B oard for Correction of Naval Records can grant this type of narrative reason change. Additionally, the NDRB is not bound by Department of Veterans Affairs (VA) decisions, nor do VA decisions have any bearing on the decisions of the NDRB. Decisions reached by the VA to determine if former servicemembers rate certain VA benefits do not affect previous discharge decisions made by the Marine Corps. The criteria used by the VA in determining whether a former servicemember is eligible for benefits are different than that used by the Marine Corps when determining a member’s discharge characterization.

: (Decisional) ( ) . The Applicant contends combat-related PTSD and TBI mitigate his misconduct, and he was not treated for PTSD despite asking for assistance. He also contends the Separation Authority did not consider his PTSD diagnosis when determining his General discharge for Alcohol Rehabilitation Failure. The Applicant’s record shows that he sought counseling for stress - related symptoms while in Iraq in April 2004 due to personal problems with his wife and stress from his job. He was diagnosed by a psychiatrist with Adjustment D isorder with anxiety and depressed mood. After redeployment, the Applicant sought counseling again in Nov ember 2005 after he was arrested for driving under the influence (DUI) of alcohol. The Applicant was then diagnosed with Alcohol D ependency , depression from his recent divorce, and suicid al ideations. However, although he was referred to mental health by the medical officer, there is no record of further psychiatric diagnos e s. The Applicant subsequently received outpatient treatment for alcohol dependence. The Applicant deployed twice more to Iraq with no other recorded instances of mental health problems. In October 2012, the Applicant completed inpatient treatment for alcohol dependence but fa iled his aftercare treatment when he reported to work smelling of alcohol . In that same month, he was again arrested for DUI . With two alcohol-related incidents after the inpatient alcohol rehabilitation treatment, the Applicant met the requirements for administrative separation for Alcohol Rehabilitation Failure. The Applicant received Honorable discharges for his first two enlistments from June 2003 to May 2011. Each period of enlistment is an independent obligation and characterization is determined for that specific period of time. With the four retention warnings in his current enlistment, he also met the requirements for administrative separation for a Pattern of Misconduct.

The Applicant’s record contain s adverse fitness reports and the Applicant’s rebuttal to those fitness reports where he claimed PTSD mitigated his poor behavior. His record also contains rebuttals from his chain of command refuting his contentions. After a complete review of the records, the NDRB could find no refusals of treatment for PTSD. Rather, his record shows mental health treatment throughout his career when he asked for it. While t he Applicant may feel that PTSD or TBI w as the underlying cause of his misconduct, the record reflects willful misconduct and alcohol abuse that demonstrated he was unfit for further service. The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be hel d accountable for his actions. The NDRB determined the Separation Authority considered all relevant material when ordering the Applicant’s discharge for Alcohol Rehabilitation Failure. After considering the in-service and post-service diagnoses of PTSD and possible TBI, the NDRB determined PTSD and TBI did not mitigate his misconduct and alcohol abuse 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

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USMC | DRB | 2013_Marine | MD1301269

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