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USMC | DRB | 2013_Marine | MD1301728
Original file (MD1301728.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20130826
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)       19950513 - 19951126     Active:   19951127 - 20010222 HON
                                    USMC 20010223 - 20040623 HON
                                    USMC 20040624 - 20080308 HON

Period of Service Under Review:
Date of Current Enlistment: 20080309     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20090914      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 05 D a y ( s )
Education Level:        AFQT: 52
MOS: 0659
Fitness R eports:

Awards and Decorations ( per DD 214):      (3) (2) (4) MOVSM (3) (4) KDSM (2) PUC NUC

Periods of CONF : I n Hands of Civil Authorities - Not Found in Record

NJP:     SCM:              SPCM:    CC:      Retention Warning Counseling :

CIVIL ARREST:

- 20090823 :       Charges: 2 Class C felony counts of Vehicular Manslaughter and one count of Driving While Intoxicated [Extracted from Commanding Officer’s Letter of Recommendation dated 20090901]

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 951127 UNTIL 080308 ”
        
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. 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 s 111 and 119 .



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

Applicant’s Issues

 1.       The Applicant contends his misconduct was an isolated incident in 13 years and 9 months of service with no other adverse action.
2.       The Applicant contends he was discharged while pending civilian prosecution and was not found guilty of the most serious charges against him where it was found that his alcohol consumption did not cause the accident.
3.       The Applicant contends he was never evaluated for P ost-Traumatic Stress Disorder (P TSD ) even though he completed three combat tours and had two suicide attempts .
Decision

 Date: 20140403            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 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. T he Applicant’s service record documents being awarded the Combat Action Ribbon for combat operations in support 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 no 6105 counseling warnings and no misconduct resulting in nonjudicial punishment or court-martial. However, the Applicant was arrested and charged with two Class C felony counts of Vehicular Manslaughter and one count of Driving While Intoxicated . Based on t he offense s committed by the Applicant, command administratively processed for separation. When notified of a dministrative separation processing using the procedure, the Applicant waived rights to consult with a qualified counsel, submit a written statement, and request an administrative board .

Issues 1-2: (Decisional) ( ) . The Applicant contends his misconduct was an isolated incident in 13 years and 9 months of service with no other adverse action. The Applicant contends he was discharged while pending civilian prosecution and was not found guilty of the most serious charges against him where it was found that his alcohol consumption did not cause the accident. The Applicant received an Honorable characterization of service for his first three enlistments from November 1995 to March 2008. Each period of enlistment is an independent obligation and characterization is determined for that specific period of time. During his fourth enlistment, he was arrested and charged with two Class C felony counts of Vehicular Manslaughter and one count of Driving While Intoxicated. In reviewing cases, the NDRB is not bound by decisions of the civilian courts to reduce or dismiss charges subsequent to the Applicant’s discharge. However, such information can be and was considered by the NDRB in making a determination as to the equity of the characterization of service. The commission of a serious offense does not require adjudication by nonjudicial, judicial proceedings, or civilian conviction, however, the offense must be substantiated by a preponderance of evidence. The Applicant was notified of separation due to commission of a serious offense as evidenced by his civilian charges of driving while intoxicated and striking and killing two civilians. The Applicant was provided the opportunity to present his case before an administrative board, but he waived that right. Based on the Applicant’s record of service in his current enlistment, the NDRB determined the Applicant engaged in conduct involving one or more acts or omissions that constituted a significant departure from the conduct expected of members of the Naval Service, and the awarded characterization of service was warranted. Relief denied.



: (Decisional) ( ) . The Applicant contends he was never evaluated for PTSD even though he completed three combat tours and had two suicide attempts. The NDRB presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. Other than the Applicant’s statement indicating that he was never screened for PTSD , he provided no evidence of any PTSD diagnosis or treatment, in-service or post-service, and his statement alone is not enough to refute the presumption of regularity. In-service treatment was available, and it was the Applicant’s responsibility to seek that treatment if he believed he was suffering from PTSD. Though the Applicant may feel that PTSD may have been the underlying cause of his misconduct, the record reflects the Applicant displayed willful and persistent misconduct by abusi ng alcohol . Likewise, the 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. After an exhaustive review, the NDRB determined PTSD 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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