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USMC | DRB | 2013_Marine | MD1301298
Original file (MD1301298.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20130424
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)       19990819 - 19991212     Active:   19991213 - 20031002 HON
                                    20031003 - 2009060 8 HON        

Period of Service Under Review:
Date of Current Enlistment: 2009060 9     Age at Enlistment:
Period of E nlistment : Years 9 Months
Date of Discharge: 20121217      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 10 D a y ( s )
Education Level:        AFQT: 51
MOS: 1171/2336
Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle (4) Pistol (w/Combat “V”) (Iraq) (3) (3) (Iraq) KDSM (4) Basic EOD Insignia

Periods of UA / CONF :

Lost time per DD214: 20111122-20111126, 5 days
NJP:     SCM:     SPCM:

CC:

- 20120510 :       Offense: (PC 262 (a) (1)) Spousal Rape
         Sentence : Hearing scheduled for 20121024, violation punishable by up to eight (8) years in state prison

Retention Warning Counseling :

- 20100206 :       For arrest and charged for felony vandalism to a privately own ed vehicle. On 20100201 in civilian court my felony vandalism was dismissed, under the condition I plea d guilty to disturbing the peace, a misdemeanor. The terms and conditions of my guilty plea consist of: (1) I am to be placed on three years informal probation, (2) I was fined $368.00, (3) I was ordered to pay $700.00 restitution to the victim. My actions were unacceptable for a Marine NCO. As an NCO, I am expected to lead by example. Due to this incident being an alcohol - related incident , I was referred to CSACC on 20091120 for evaluation a nd completed alcohol treatment.

- 20120126 :       For my off - base arrest for civilian criminal charges, specifically 3 felony charges that are still pending.

- 20120126 :       For violation of Article 134 UCMJ (Adultery). In that from 201104 to 201201 you had a physical/sexual relationship with another woman while you were married and that this woman is also married to a Marine Staff Sergeant.

- 20120404 :       For violation of Military Protective Order dated 20111122. You were directed to have no communication and not to come within 1000 feet of your wife and children , J_, L_, and R_ L_ per a letter from the program director at Operation Homefront SoCal Village on 16 January; though J_ was not at your home, you did go to the house to collect some items while J_’s mother was there with the children.

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 P1900.16 F ), 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 .

C. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 120.



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

Applicant’s Issues

 1.       The Applicant would like to use the GI Bill.
2.       The Applicant contends his record of service warrants consideration for an upgrade.
3 .       The Applicant contends he should have been medically separated due to MARADMIN 328/10 and his P hysical Evaluation Board (P EB ) .
4 .       The Applicant contends his misconduct is mitigated by Post-Traumatic Stress Disorder ( PTSD ) and Traumatic Brain Injury (TBI) .
Decision

Date: 20131106            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 deployments to Iraq from February to September 2004, August 2007 to February 2008, and February to August 2009 conducting combat operations in suppo rt 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. The Applicant’s record of service in his current enlistment included 6105 counseling warnings and a civilian conviction for spousal rape. Based on the offe nse s committed by the Applicant, command administratively processed for separation. When notified of a dministrative separation processing using the procedure, the Applicant exercis ed rights to consult with a qualified counsel , submit a written statement, and request an administrative board . The administrative board voted 3-0 that the preponderance of the evidence supported the Applicant had committed misconduct and recommended separation Under Other than Honorable Conditions. The Applicant’s battalion and regimental commanders recommended the Applicant receive a General (Under Honorable Conditions) characterization after considering his PTSD and TBI as mitigating factors for his misconduct. The Separation Authority concurred with the battalion and regimental commanders’ recommendations and ordered the Applicant to be discharged with a General (Under Honorable Conditions) characterization of service for Misconduct (Serious Offense).

Issue 1: (Nondecisional) The Applicant would like to use the GI Bill. 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. The Applicant is encouraged to reapply for the GI Bill based on his previous Honorable enlistments.

Issue 2: (Decisional) (Propriety/Equity) RELIEF NOT WARRANTED. The Applicant contends his record of service warrants consideration for an upgrade. The Applicant received Honorable discharges for his first two enlistments from December 1999 to June 2009. Each period of enlistment is an independent obligation and characterization is determined for that specific period of time. During his third enlistment, he received four retention warnings and a civilian conviction for spousal rape. The 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, the NDRB determined the Applicant’s service was honest and faithful but significant negative aspects of his conduct or performance of duty outweighed the positive aspects of his service record, and the awarded characterization of service was warranted. Relief denied.
: (Decisional) ( ) . The Applicant contends he should have been medically separated due to MARADMIN 328/10 and his PEB. 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 Other Than Honorable discharge is authorized, the medical board report is filed in the member’s terminated health record. Further, the record clearly shows the Applicant’s command met all requirements under MARADMIN 328/10. 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 Board for Correction of Naval Records can grant this type of narrative reason change. While the Marine Corps did issue orders to transfer the Applicant to the Temporary Disability Retired List in January 2012, his subsequent misconduct resulted in the proper processing for administrative separation for misconduct. Relief denied.

Issue 4: (Decisional) ( ) . The Applicant contends his misconduct is mitigated by PTSD and TBI. Though the Applicant may feel that PTSD and TBI were the underlying cause of his misconduct, the record reflects the Applicant displayed willful and persistent misconduct with his four retention warnings and civilian conviction . 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. T he record shows the Applicant’s administrative board recommended separation Under Other T han Honorable Conditions , but his battalion and regimental commanders recommended a lenient General characterization due to his PTSD and TBI. The Separation Authority concurred and ordered the General discharge. A fter an exhaustive review, the NDRB determined PTSD and TBI did mitigate his misconduct but further determined the Separation Authority provided the warranted mitigation with his approval of a General discharge. The NDRB determined further mitigation with an upgrade was not warranted. 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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