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USMC | DRB | 2013_Marine | MD1301295
Original file (MD1301295.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20130529
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)       20020628 - 20030609     Active:  

Period of Service Under Review:
 Date of Current Enlistment: 20030610     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20070223      H ighest Rank:
Length of Service : Y ea rs M on ths 18 D a ys
Education Level:        AFQT: 35
MOS: 0311
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness Reports:

Awards and Decorations ( per DD 214):      Pistol

Periods of UA : 20060824-20060918 (26 days); 20061107-2007021 6 ( 101 days )
CONF:

NJP:

- 20040107 :      Article (Failure to obey order or regulation , 2 specifications )
         Specification 1: by having an unauthorized weapon in the barracks , to wit: a BB gun
         Specification 2: by w earing an earring at the BEQ
         Article (Assault , 2 specifications )
         Specification 1: did commit an assault by s hooting PFC in the chest with a BB gun
         Specification 2: did commit an assault by s hooting PFC in the foot with a BB gun
         Awarded: Suspended:

- 20040301 :      Article (Failure to obey order or regulation, allowing a member of the opposite sex in his BEQ room)
         Awarded: Suspended:

- 20060425:      Article (Absence without leave , 2 specifications )
         Specification 1: 0630-0730, 20050419, absent from morning formation
         Specification 2: from on or about 0300-0500, 20050419, absent from weapons watch until 0730
         Awarded: Suspended:

- 20051018 :      Article (Absence without leave , from 1800, 20050706 to 1449, 20050912, 67 days )
         Awarded: Suspended:

SCM:     SPCM:    CC:


Retention Warning Counseling:
- 20031112 :      For inappropriate offensive comments to a Marine of the opposite sex after I was informally couns e led on this matter by the Company Gunnery Sergeant, previously. My comment led to the offended Marine filing a complaint with the Company Equal Opportunity Representative. This conduct sets a poor example for me, this Command , and the Marine Corps and will not be tolerated.

- 20031215 :      For wrongful possession of a BB g un in the BEQ and later used it to fire at and strike two fellow Marines while assigned as the Duty NCO. This conduct sets a poor example for me, this Command , and the Marine Cor ps and will not be tolerated.

- 20031217 :      For wearing unauthorized jewelry. I was aware of the policy regarding the wearing of earrings prior to obtaining and wearing them. This conduct is unacceptable and will not be tolerated.

- 20040219 :      For allowing an unauthorized visitor of the opposite sex in his BEQ room. A violation of Article 92, UCMJ and the standards of conduct while a student at CHB, MCES.

- 20040311 :      For your unsatisfactory performance while enrolled in Electrical Equipment Repair Specialist Course.

NDRB Documentary Review Conducted (date):        20090223
NDRB Documentary Review Docket Number:   MD09-00205
NDRB Documentary Review Findings:                 Proper as issued and that no change is warranted.

Administrative Corrections to the Applicant’s DD 214

 The NDRB did note administrative error(s) on the original DD Form 214:
“ 03 02 03 ”
Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, should read: “ Iraq Campaign Medal, Combat Action Ribbon, Sea Service Deployment Ribbon, Global War on Terrorism Service Medal, National Defense Service Medal, Rifle Qualification Badge (Sharpshooter) ”
          “ IN LIEU OF TRIAL BY COURT MARTIAL ”
         “ (26) 20060824-20060918, (67) 20050706-20050912, (101) 20061107-2007021 6 ”
        
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:                  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 seeks an upgrade to qualify for service benefits.
2.       The Applicant contends his diagnosis of Post-Traumatic Stress Disorder (PTSD) warrants an upgrade in his discharge.
3.       The Applicant contends his post-service conduct warrants consideration for an upgrade.

Decision

 Date: 20 1 4 0512            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 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 record did reveal that he deployed in support of Operation I RAQI FREEDOM (OIF) from September 2005 to April 2006 during which the Applicant was awarded the Combat Action Ribbon.

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 and for o f the Uniform Code of Military Justice (UCMJ): Article 92 ( Failure to obey order or regulation, 3 specifications) , Article 128 ( Assault, 2 specifications) , and Article 86 ( Absence without leave, 3 specifications). The Applicant was charged with further s o f the Uniform Code of Military Justice (UCMJ): Article (Absence without leave, 2 specifications , 26 days and 101 days) in which the Applicant was administratively separated in lieu of trial by court-martial. The NDRB did not have the Applicant’s complete administrative separation package , however the NDRB did presume regularity in Government affairs in that the Applicant requested administrative separation in lieu of trial by court-martial. On 03 October 2006, the Commanding General, 2D Marine Division, approved the Applicant’s request for discharge under other than honorable conditions in lieu of trial by court-martial. The NDRB presumes regularity in that the Applicant had 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.

: (Nondecisional) The Applicant seeks an upgrade to qualify for 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.
: (Decisional) ( ) . The Applicant contends his diagnosis of PTSD warrants an upgrade in his discharge characterization. A review of the Applicant’s record s did reveal that he deployed in support of OIF from September 2005 to April 2006 during which the Applicant was awarded the Combat Action Ribbon. Previous to the Applicant’s OIF deployment, the Applicant received three NJPs, which included a violation of Article 86 for being absent without leave for 67 days. Following the Applicant’s deployment, he absented himself from his command on two occasions for 26 days and 101 days. The Applicant’s record of service does include documentation of his pre-separation physical that indicates a diagnosis for PTSD, but it does not include any evidence that indicates the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions. The NDRB determined PTSD did not mitigate the Applicant’s misconduct, and an upgrade is not warranted. Relief denied.


: (Decisional) ( ) . The Applicant contends his post-service conduct warrants consideration for an upgrade. The NDRB is authorized to consider post-service factors in the re-characterization of a discharge. However, there is no law, or regulation, that provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to exist during the period of enlistment in question. Besides the Applicant’s testimony and his statement on the DD Form 293, he failed to provide any documentary evidence on his behalf for post-service consideration. The Applicant could have provided documentation as detailed in the Post-Service Conduct paragraph in the Addendum with the recognition that 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. Without post-service documentary evidence, the Board determined the awarded characterization of service shall remain Under Other Than Honorable Conditions. 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 is not eligible for further reviews by the NDRB. The Applicant may petition the Board for Correction of Naval Records, 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 for further review using DD Form 149. Their website can be found at http://www.donhq.navy.mil/bcnr/bcnr.htm . 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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