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USMC | DRB | 2013_Marine | MD1301632

Original file (MD1301632.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20130814

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)       20020412 - 20020916     Active: 20020917 - 20051001
                                    20051002 - 20080515
                                    200 80516 - 20 110513
Period of Service Under Review:
Date of Appointment : 20110514                                Age:
Years Contracted: Indefinite
Date of Discharge: 20130208                                  Highest Rank : 2ndLt
Length of Service: Year(s) Month(s) 26 Day(s)
Education Level:                                             AFQT: 49
Officer’s Fitness reports: Available

Awards and Decorations ( per DD 214):      Rifle (5) Pistol (2) (2) (2) (2) (2) (2)
Periods of UA / CONF :

NJP:

- 20120212 :       Article (Failure to obey order or regulation; having knowledge of a lawful order issued by a USMC Major to not have any form of contact or communication with a female Second Lieutenant until his divorce proceedings were finalized, an order which it was his duty to obey, did on or about 20120116, fail to obey the same by wrongfully having contact with said Second Lieutenant )
         Article (Conduct unbecoming an officer and gentleman , 2 s pecifications)
         Specification 1: Did on or about November 2011, while a married man, travel to Las Vegas with a female Marine Second Lieutenant, and during this trip did wrongfully and dishonorably share a hotel room containing one b ed , with the said Second Lieutenant, all of which was conduct unbecoming an officer and gentleman.
         Specification 2: Did on or about 20120117 while a married man, wrongfully and dishonorably have contact with a female Second Lieutenant, after being giving a lawful order by a USMC Major to not have contact with the said Second Lieutenant until his divorce proceedings were finalized, all conduct unbecoming an officer and gentleman.
         Awarded: Suspended:

SCM:     SPCM:    CC:      Retention Warning Counseling :

Administrative Corrections to the Applicant’s DD 214

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

         “ SECNAVINST 1920.6C ”
“ MISCONDUCT ”

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. Secretary of the Navy Instruction 1920.6C (ADMINISTRATIVE SEPARATION OF OFFICERS) effective 15 December 2005 until Present establishes policies, standards and procedures for the administrative separation of Navy and Marine Corps officers from the naval service in accordance with Title 10, United States Code and DoD Directive 1332.30 of 14 Mar 97.

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 he never received formal counseling s .
2.       The Applicant contends he is innocent.
3.       The Applicant contends his in-service conduct warrants an upgrade to Honorable.
4.       The Applicant contends t he Basic School Commander was improperly influenced by his former father - in - law.
5.       The Applicant contends Post-Traumatic Stress Disorder (PTSD) and Traumatic Brain Injury (TBI) mi tigate his misconduct.

Decision

Date: 20 1 4 0403          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 annotates that he was diagnosed with PTSD and TBI. The Applicant’s service record documents deployments to Iraq and Afghanistan, conducting combat operations in support of Operation IRAQI FREEDOM and Operation ENDURING 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 as a commissioned officer included for o f the Uniform Code of Military Justice (UCMJ): Article 92 (Failure to obey order or regulation) and Article 133 (Conduct unbecoming an officer and gentleman , 2 s pecifications). Based on the offenses committed by the Applicant, command administratively processed for separation. When notified of administrative separation processing using the procedure, the Applicant exercised rights to consult with a qualified counsel and to tender a resignation in lieu of administrative separation. The Applicant submitted a request for an unqualified resignation in lieu of administrative separation and request ed an Honorable characterization. However, the Deputy Commandant, Manpower and Reserve Affairs recommended the Applicant’s request for an unqualified resignation be denied and that he be separated Under Honorable Conditions (General) for substandard performance and misconduct. On 26 December 2012, the Assistant Secretary of the Navy ( Manpower and Reserve Affairs ) approved the Deputy Commandant ’s recommendation.

: (Decisional) ( ) . The Applicant contends he never received formal counseling s and further contends he is innocent. It was the Applicant’s responsibility to obey all lawful orders, verbal and written. The record of evidence clearly shows the Applicant waived his right to trial by court-martial and accepted NJP where he pled guilty to violating UCMJ Articles 92 and 133. The record further shows the Applicant did not appeal his NJP and submitted a resignation to avoid separation proceedings. If the Applicant felt he was mistakenly charged with a crime, it was his obligation to contest those charges at the time they were made. During a trial, he would have had the opportunity to mount a defense against the charges. The Applicant submitted no evidence to support his contention s, and the NDRB determined his NJP and discharge proceedings were proper. Relief denied.

: (Decisional) ( ) . The Applicant contends his in-service conduct warrants an upgrade to Honorable. The Applicant received Honorable discharge s for three enlistments from September 2002 to May 2011. In May 2011, he was commissioned as a Second Lieutenant in the U.S. Marine Corps . C ommission ed service is an independent obligation from enlistments and characterization is determined for that specific period of time. During his almost 21 months as a commissioned officer, he was found guilty at an NJP of violating UCMJ Articles 92 and 133. The characterization of service is

determined by the quality of the member’s total performance of duty and conduct during the current period of service, 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 as a commissioned officer , 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.

4: (Decisional) ( ) . The Applicant contends t he Basic School Commander was improperly influenced by his former father - in - law. The record contained no evidence of any wrongdoing by t he Basic School Commander or anyone else in the discharge process. The NDRB presumes regularity in the conduct of governmental affairs in the absence of persuasive evidence to the contrary. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case. Relief denied.

5: (Decisional) ( ) . The Applicant contends PTSD and TBI mitigate his misconduct. As part of the separation proceedings, the Applicant’s official military service record notes diagnos e s of PTSD and TBI from previous combat deployments as an enlisted Marine . However, competent medical authority determined the Applicant’s PTSD and TBI diagnoses “may not reasonably be considered to be a contributory factor in the behavior or activities which now lead to the recommendation for involuntary administrative separation.” After an exhaustive review, the NDRB determined PTSD and TBI did not mitigate the Applicant’s 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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USMC | DRB | 2013_Marine | MD1301632

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