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USMC | DRB | 2013_Marine | MD1301310
Original file (MD1301310.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20130604
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)       20020806 - 20021208     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20021209     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20070810      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 02 D a y ( s )
Education Level:        AFQT: 53
MOS: 5811
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle Pistol LoA CoC CoA

Periods of UA / CONF : UA: 20060629-20070228, 244 days / CONF:

NJP:

- 20050818 :      Article (Absence without leave)
          Article (Assaulting or willfully disobeying a superior commissioned officer)
         Awarded: Suspended: Suspension vacated 20050825

SCM:     SPCM:    CC:

Retention Warning Counseling :

- 20050729 :       For unauthorized absence 0530-1030, 20050704. This type of conduct is prejudicial to good order and discipline and will not be tolerated.

- 20050823 :       For unauthorized absence 0730-1300, 20050812 and willfully disobeying a superior commissioned officer by not going to your barracks room for your period of sick - in - quarters. This type of conduct is prejudicial to good order and discipline and will not be tolerated.

- 20050824 :       For unauthorized absence 0730-0937, 20050819. You admitted to “partying” late and did not get up in time for work. This type of conduct is prejudicial to good order and discipline and will not be tolerated.

- 20051011 :       For your alcohol-related incident, specifically , reported to work late due to late night drinking on 20050818.





Administrative Corrections to the Applicant’s DD 214

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

          “ ”
         “ (244) 20060629-20070228 ”

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:                  Oth er Documentation:    
                  Additional Statements :
         From Applicant:            From /To Representation:            From /To Congress m ember :        

Pertinent Regulation/Law

 A. Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 1 September 2001 until Present, Paragraph 1005, DISCHARGE FOR EXPIRATION OF ENLISTMENT OR FULFILLMENT OF SERVICE OBLIGATION .

 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 seeks to use the GI Bill.
2.       The Applicant seeks to have her reenlistment code changed.
3.       The Applicant contends her separation orders show she was getting an Honorable discharge.
4 .       The Applicant contends Post-Traumatic Stress Disorder ( PTSD ) mitigates her misconduct .
 5.       The Applicant contends her post-service conduct warrants consideration for an upgrade.

Decision

Date: 2014 01 16            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 reviewed the Applicant ’ s record to see if s he deployed in support of a contingency operation and was, as a consequence of that deployment, diagnosed with either PTSD or TBI. A review of h er record revealed that s he did not deploy in support of a contingency operation, and so her case did not warrant an expedited review in accordance with U.S. Code, Title X, Section 1553(d)(1).

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 included 6105 counseling warnings and for o f the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave) and Article 90 (Assaulting or willfully disobeying a superior commissioned officer) . The Applicant was separated at the end of h er obligated active service with a General (Under Honorable Conditions) characterization of service .

: (Nondecisional) The Applicant seeks 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.
: (Nondecisional) The Applicant seeks to have her reenlistment code changed. 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 B oard for Correction of Naval Records 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.

Issue 3: (Decisional) (Propriety) RELIEF NOT WARRANTED. The Applicant contends her separation orders show she was getting an Honorable discharge. Separation orders are often prepared before the Separation Authority determines the discharge characterization of service and are not considered to be an official record of one’s final characterization of service. In accordance with Paragraph 1004 of the Marine Corps Separation and Retirement Manual, an Honorable characterization of service upon the expiration of active duty is appropriate when the quality of a Marine’s service has met the standards of accepted conduct and performance of duty for military personnel. Therefore, characterization of service will be Honorable for Marines with average Proficiency marks of 3.0 or higher and average Conduct marks of 4.0 or higher. The Applicant completed her obligated service, however, her overall averages for Proficiency and Conduct were not found in the record. The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support her issue. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that her Proficiency and Conduct averages were at the levels required for an Honorable discharge. The NDRB determined her discharge was proper and equitable. Relief denied.

 Issue 4: (Decisional) ( ) . The Applicant contends PTSD mitigates her misconduct. The Applicant provided a letter dated 19 November 2012 from a clinical psychologist who had “provided brief-term psychotherapy services at the VA Los Angeles Ambulatory Care Clinic to [the Applicant] to address long-time symptoms of post-traumatic stress disorder (PTSD) and major depression secondary to a significant trauma history.” She also provided a detailed letter dated 26 April 2007 from her to the Command Inspector, Marine Corps Base, Camp Pendleton detailing sexual harassment and hazing. In determining discharge characterization of service, the Applicant’s conduct forms the primary basis for consideration. The post-service letter and in-service statement provided by the Applicant do not demonstrate that she was suffering from PTSD symptoms while in-service and more importantly , it does not show that the Applicant was not responsible for her in-service misconduct and her subsequent low C onduct marks. After an exhaustive review, the NDRB determined PTSD did not mitigate the Applicant’s misconduct and assignment of a General discharge at the end of her enlistment. Relief denied.

Issue 5: (Decisional) (Equity) RELIEF NOT WARRANTED. The Applicant contends her post-service conduct warrants consideration for an upgrade. The Applicant contends her post-service conduct warrants consideration for an upgrade to Honorable. The NDRB considers 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. The Applicant provided a personal statement, a resume, a character reference, and medical documentation detailing treatment for PTSD symptoms. The Applicant could have provided documentation as detailed in the Post-Service Conduct paragraph in the Addendum , however, 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. T he Board determined the characterization of service received was appropriate considering the length of service and UCMJ violations. Relief denied.

The NDRB did note an error on her resume where she contends she earned a Good Conduct Medal on 18 August 2005. This is incorrect. A servicemember must serve for three consecutive years without misconduct to earn a Good Conduct Medal. The confusion likely arose from Block 18 on the Applicant’s DD Form 214, which contains a date of 18 August 2005 and serves as the restart date for the three year counter and corresponds to the date of her NJP for violating UCMJ Articles 86 and 90. This NJP occurred prior to reaching three years of service.

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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