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USMC | DRB | 2013_Marine | MD1301791
Original file (MD1301791.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20130820
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)       20020729 - 20030617     Active:  

Pre-Service Drug Waiver:

Period of Service Under Review:
Date of Current Enlistment: 20030618     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20070420      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 03 D a y ( s )
Education Level:        AFQT: 35
MOS: 0311
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle (2) ACM (2)

Periods of UA / CONF : UA: 20060310-20060418, 40 days; 20060419-20060927, 162 days (I n Hands of Civil Authorities) / CONF:

NJP:
- 20051215 :       Article (Larceny and wrongful appropriation)
         Article 130 (Housebreaking)
         Awarded: Suspended:

- 20060310 :      Article (Absence without leave)
         Awarded : Susp ended: [Extracted from Commanding Officer’s letter dated 200600822)

SCM:     SPCM:    CC:

CIVIL ARREST:

- 20060419 :       Charges: Possession of drug paraphernalia

Retention Warning Counseling :

- 20030911 :       For involvement in obstructing justice in an official investigation and giving a false official statement to an investigator for CID.

- 20050116 :       For violati ng II MEF Commander’s Liberty Policy on 20050109 by driving between the hours of 0200-0500 and was involved in a single car automobile accident at approximately 0400 on your way back to base.

- 20051208 :       For pending legal action at Weapons Company 1/6.

Administrative Corrections to the Applicant’s DD 214

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

          “ 2003 06 18 ”
         “ 03 04 16 ”
         “ 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. The Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 1 September 2001 until Present,
Paragraph 6210, MISCONDUCT .

 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 civilian charges that led to his discharge were dismissed , and he was treated unfairly by his command despite his honorable service .
2.       The Applicant contends his post-service conduct warrants consideration for an upgrade.
3 .       The Applicant contends combat - related P ost -T raumatic S tress D isorder (PTSD) mitigates his misconduct.

Decision

Date : 20 1 4 0410            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 completion of a deployment to Afghanistan from March to July 2004 in support of Operation ENDURING FREEDOM and a deployment to Iraq from March to October 2005 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. 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, for o f the Uniform Code of Military Justice (UCMJ): Article ( Larceny and wrongful appropriation , ), Article 130 ( Housebreaking , ), and Article ( Absence without leave , 40 days ) , and a civilian arrest for possession of drug paraphernalia and possession of marijuana with intent to distribute. Based on the Applicant’s offenses, his command processed him for administrative separation. When notified of a dministrative separation processing using the procedure, the Applicant rights to consult with a qualified coun sel, submit a written statement , and request an administrative board .

: (Decisional) ( ) . The Applicant contends civilian charges that led to his discharge were dismissed, and he was treated unfairly by his command despite his honorable service. The threshold for administrative separation is that a preponderance of evidence supports the reason for separation. In the Applicant’s case, he was arrested on 19 April 2006 by civilian authorities for possession of drug paraphernalia and possession of marijuana while he was in an absence without leave status from the Marine Corps. The Applicant was held in the hands of civilian authorities for 162 days and was found guilty by a civilian court of possession of drug paraphernalia. Earlier in the Applicant’s enlistment, he was found guilty at NJP on 15 December 2005 for stealing another Marine’s television from his barracks room and was found guilty at a second NJP on 10 March 2006 for absence without leave. With this misconduct, he met the requirements for administrative separation for Misconduct (Serious Offense), Misconduct (Pattern of Misconduct), and Misconduct (Drug Abuse). When notified of administrative separation processing, the Applicant waived his right s to consult with counsel, submit a written statement, and appear before an administrative separation board, t hus accepting the recommendation of his command that he be discharged from the Marine Corps Under Other Than Honorable Conditions for Misconduct (Drug Abuse). After a complete review of the Applicant’s records, which included deployments to Afghanistan and Iraq and below-average overall Conduct marks of 3.4, the NDRB determined he received full due process and all applicable rights, was treated fairly by his command, and his discharge was warranted, proper, and equitable. Relief denied.



Issue 2: (Decisional) (Equity) RELIEF NOT WARRANTED. 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 two personal statements, a statement from his ex-wife and another woman, a certificate of achievement from a recovery program, a letter of achievement from Tidewater Tech, and a post-service medical diagnosis of cannabis dependence and a note to rule out PTSD. 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 documentation submitted by the Applicant does not demonstrate if in-service misconduct was an aberration. The characterization of service received was appropriate considering the length of service and UCMJ violations. Relief denied.
: (Decisional) ( ) . The Applicant contends combat-related PTSD mitigates his misconduct. 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 his issue. The NDRB requested the Applicant’s medical treatment records, but the Department of Veterans Affairs was unable to locate them. Furthermore, the NDRB did not find any reference to a medical diagnosis of PTSD in the Applicant’s service record to support his claim . The Applicant provided statements from himself, his ex-wife, and another woman relating PTSD symptoms and two post-service medical assessments that describe PTSD symptoms, recommend further mental health assessments to rule out PTSD, and relate that the Applicant does appear to be suffering from PTSD based on self-reporting. Though the Applicant may feel that PTSD was the underlying cause of his misconduct, the record reflects willful misconduct that demonstrated he was unfit for further service. 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. The Applicant’s record reflects a pattern of misconduct that eventually resulted in his administrative separation from the Marine Corps. The NDRB determined PTSD did not mitigate his misconduct. R elief 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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