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USMC | DRB | 2014_Marine | MD1400022
Original file (MD1400022.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20131011
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)       19980311 - 19981012     Active:            19981013 - 20021012
         USMCR    20021013 - 20030629               USMC     20030630 - 20031017
         USMCR    20031018 - 200 3 1209               USMC     200 31210 - 20040320
         USMCR    20040321 - 20040330               USMC     20040331 - 20080922

Period of Service Under Review:
Date of Current Enlistment: 2008092 3     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20100423      H ighest Rank:
Length of Service : Y ea rs M on ths 01 D a ys
Education Level:        AFQT: 59
MOS: 0612
Fitness R eports:
Awards and Decorations ( per DD 214):      Rifle Pistol ( 3 ) (2) LoA (2)

Periods of UA / CONF :

NJP:

- 20090410 :       Article (Drunken or reckless operation of vehicle, aircraft, or vessel)
         Awarded: Suspended:

- 20090827 :      Article (Failure to obey order or regulation by operating a motor vehicle while under the influence of alcohol)
         Awarded: Suspended:

SCM:     SPCM:    CC:

Retention Warning Counseling :

- 20090410 :       For your conviction of Article 111 at NJP on 20090410.

- 20090827 :       For misconduct, specifically, SNM found guilty at NJP of violation of Article 92.









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 P1900.16F), 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 .



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

Applicant’s Issues

 1.       The Applicant contends personal problems contributed to his abuse of alcohol and resultant misconduct.
2.       The Applicant contends Post-Traumatic Stress Disorder (PTSD) diagnosed post-service by the Department of Veterans Affairs (VA) with a 30% disability rating mitigates his misconduct.
3 .       The Applicant contends his post-service conduct is worthy of consideration for an upgrade to Honorable.

Decision

 Date: 20 1 4 0130            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. A review of the Applicant’s records shows that he deployed to Iraq from January 2007 to January 2008 and July 2005 to January 2006 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 standards of equity and propriety. The Applicant’s record of service included 6105 counseling warnings and for o f the Uniform Code of Military Justice (UCMJ): Article 111 ( Drunken or reckless operation of vehicle, aircraft, or vessel) and Article 92 ( Failure to obey order or regulation). Based on the offenses committed by the Applicant, command administratively processed for separation. When notified of a dministrative separation processing using the procedure, the Applicant exercise d rights to consult with a qualified counsel, submit a written statement, and request an administrative board . By a vote of 3 to 0, the administrative board determined the preponderance of the evidence proved all acts or omissions alleged in the notification and recommended that the Applicant be separated with a General (Under Honorable Conditions ) characterization of service.

: (Decisional) ( ) . The Applicant contends personal problems contributed to his abuse of alcohol and resultant misconduct. The Applicant stated on his DD Form 293 that “during that pattern of misconduct I had gone through a divorce and several deployments that left me feeling detached and not myself” and “at the time, I felt that alcohol and its effects were my only means of coping with my feelings . ” The NDRB recognizes that serving in the military is challenging. Most servicemembers, however, serve honorably and therefore earn their Honorable discharges. The Applicant received Honorable discharges for previous enlistments. Each period of enlistment is an independent obligation and characterization is determined for that specific period of time. For the enlistment that started in September 2008, however, he received two retention warnings and was found guilty of violating UCMJ articles at two NJPs. In fairness to those servicemembers, commanders and separation authorities are tasked to ensure that undeserving Marines receive no higher characterization than is due. There is no evidence in the record, nor did the Applicant provide any documentation, to indicate he attempted to use the numerous services available for servicemembers who undergo personal problems during their enlistment s , such as the Navy Chaplain, Medical or Mental Health professionals, Navy Relief Society, Family Advocacy Programs, or even the Red Cross. The NDRB determined the Applicant’s personal problems were not mitigating factors in his misconduct. Relief denied.




: (Decisional) ( ) . The Applicant contends PTSD diagnosed post-service by the VA with a 30% disability rating mitigates his misconduct. Although the Applicant does not directly cite PTSD as a contributing factor in his misconduct, the NDRB did consider the extent to which PTSD might have affected the Applicant’s performance and ability to conform to the military’s standards of conduct and discipline. A review of the Applicant’s record did reveal that he twice deployed in support of Operation IRAQI FREEDOM . The NDRB acknowledges his PTSD diagnosis, however, the Board determined the Applicant’s misconduct was willful , and there was nothing in his in-service or post-service records to show that he was either not responsible for his conduct or should not be held accountable for his actions. The NDRB determined PTSD did not mitigate the Applicant’s misconduct. Relief denied.

: (Decisional) ( ) . The Applicant contends his post-service conduct is worthy of 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, evidence of his Associate in Science degree from Woodland Community College, a “Commanders Award ” for volunteer service to Toys for Tots, and a certificate of meritorious commendation from the Marine Corps League. These items alone do 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. The NDRB 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.
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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