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USMC | DRB | 2014_Marine | MD1400335
Original file (MD1400335.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20140109
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)       20070410 - 20070723     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20070724     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20090217      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 24 D a y ( s )
Education Level:        AFQT: 47
MOS: 3051
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):     

Periods of CONF :

NJP:

- 20080117 :       Article (Absence without leave, went from appointed place of duty , 20080113)
         Article (Failure to obey order or regulation on 20080113, consumed alcohol while under the legal drinking age)
         Awarded: Suspended: NONE

- 20080725 :       Article (Absence without leave, from supply company morning formation on 20080502)
         Article (Failure to obey order or regulation, consumed alcohol while under the legal drinking age)
         Article 134.73 (General A rticle, appear at appointed place of duty while under the influence of alcohol)
         Awarded: Suspended: (15 days) Vacated 20080827

- 20081017 :      Article (Absence without leave)
         Article (Failure to obey order or regulation , 2 specifications )
         Specification 1: Breaking restriction order on 20080817 , missed three muster s of her restriction)
         Specification 2: Admitted to drinking 2 beers on 20080817
         Awarded: Suspended:

SCM:     SPCM:    CC:

Retention Warning Counseling :

- 20080117 :       For NJP for violation of Article s 86 and 92 of the UCMJ. On or about 20080113 you went from your appointed place of duty, to wit: B arracks M 430, and you violated MCCSSS Policy Letter 07-06, by consuming alcohol while under the legal drinking age of 21.


- 20080725 :       For company level NJP for violation of Article s 86, 92 , and 134.73 of the UCMJ held on 20080725

- 20081017 :       For battalion level NJP for violation of Article s 92x2 and 86 of the UCMJ held on 20081017

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 ’s father contends she suffered military sexual trauma (MST) before she went to boot camp and while in service, the MST likely aggravated her alcohol dependence and resulted in Post-Traumatic Stress Disorder (PTSD), and these conditions mitigate her misconduct.
 2 .       The Applicant ’s father contends an Under Other Than Honorable Conditions discharge was a disproportionate response to the minor misconduct.
3.       The Applicant’s father contends her discharge should have been Honorable and based on her mental health issues caused by MST.

Decision

 Date : 20 1 4 0320            Location: Washington D.C .         R epresentation :

By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall .
Discussion

 The Applicant’s father is requesting, posthumously, to upgrade his daughter’s characterization of service at discharge. The NDRB sends its sincere condolences and acknowledges this request is an important issue to the Applicant’s family. Although requests by families to upgrade the characterization of a deceased service member are infrequent, they are not unique. The NDRB reviews these cases in an objective manner as if the Applicant was still living , however, the NDRB also takes into consideration that certain documentary or testimonial evidence may not be available or reasonable to obtain.

 As a result of the Applicant ’ s father’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 T raumatic Brain Injury . A review of h er record revealed that s he did not deploy in support of a contingency operation, and so it was not mandated that her case receive an expedited review in accordance with U.S. Code, Title X, Section 1553(d)(1). However, based upon the specifics of the case, the NDRB de cided to expedite the case.

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 86 ( Absence without leave , 3 specifications ), Article 92 ( Failure to obey order or regulation , 4 specifications ), and Article 134 ( General A rticle, reported for duty under the influence of alcohol , 1 specification ) . 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 waived rights to consult with a qualified counsel, submit a written statement, and request an administrative board .

Issue 1 : (Decisional) (Propriety/Equity) RELIEF NOT WARRANTED . The Applicant’s father contends she suffered MST before she went to boot camp and while in service, the MST likely aggravated her alcohol dependence and resulted in PTSD, and these conditions mitigate her misconduct. While in service, competent medical authorities diagnosed the Applicant with Alcohol D ependen ce , Depression - not otherwise specified (NOS), and PTSD - not combat related. After the Applicant’s first alcohol-related incident in January 2008, she was referred to an intensive in-patient alcohol rehabilitation treatment program , which she attended from 10 March to 4 April 2008. During her treatment, the Applicant admitted that the “first use of alcohol was at the age of thirteen in the amount of six beers. The patient reports a regular pattern of use from age fourteen in the amount of twelve beers, and three to five shots of liquor.” During the Applicant’s enlistment process, she confessed to twice using marijuana but denied any instances of alcohol abuse. Also while in treatment, the Applicant made an allegation of rape

against a Marine recruiter. Marine Corps Recruiting Command conducted an investigation of the allegation, however, their investigation could not substantiate that a sexual assault had occurred. Upon the completion of her first alcohol rehabilitation treatment, she immediately began drinking alcohol. The Applicant was hospitalized from 19 May to 23 May 2008 by her unit when she attempted suicide by jumping from the balcony of her barracks. After release from the hospital, the Applicant began a second in-patient alcohol rehabilitation treatment program. However, the Applicant failed to complete the program and was discharged from treatment for “a pervasive pattern of disobeying rules and regulations.” Her participation in therapy was reported as unsatisfactory , and her prognosis for remaining free of further alcohol abuse was considered poor. In September 2008, the Applicant reported to her command that she had been sexually assaulted by a fellow Marine. Her command provided the Applicant with a victim’s advocate, and the Naval Criminal Investigative Service (NCIS) initiated an investigation. However, NCIS was unable to substantiate that a sexual assault had occurred.

After the Applicant’s third NJP in October 2008, her command initiated administrative separation proceedings. When notified of administrative separation processing on 23 October 2008, the Applicant waived her rights to consult with a qualified counsel, to submit a written statement to the Separation Authority, and to appear before an administrative separation board. The Marine Corps discharged the Applicant on 17 February 2009 Under Other Than Honorable Conditions for Misconduct (Pattern of Misconduct). After a careful review of the Applicant’s service and medical records, a summary of the NCIS investigation of the September 2008 alleged sexual assault, and the documentation and statements provided by the Applicant’s father, the NDRB determined the Applicant was provided with extensive alcohol rehabilitation treatment, counseling services, and psychiatric treatment and was provided multiple opportunities to correct her behavior and receive assistance for her alcohol dependence, depression, and PTSD. Despite the numerous and varied opportunities offered to her, however, the Applicant continued to engage in misconduct, and her command ultimately determined she was no longer fit to serve. The NDRB determined PTSD did not mitigate her misconduct, she was responsible for her actions, and her discharge was warranted, proper, and equitable. Relief denied.

Issue 2: (Decisional) (Propriety/Equity) RELIEF NOT WARRANTED. The Applicant’s father contends an Under Other Than Honorable Conditions discharge was a disproportionate response to the minor misconduct. During the Applicant’s 18 months of service, she received three retention warnings, was found guilty at three NJPs of committing numerous UCMJ violations, and received below-average Proficiency and Conduct marks of 3.5/3.0. With this misconduct, she met the requirements to be administratively separated for Misconduct (Serious Offense), Misconduct (Pattern of Misconduct), and Alcohol Rehabilitation Failure. Violation of Article 92 (Failure to obey an order or regulation) warranted a punitive discharge as the result of a Special or General Court-Martial, however, her command adjudicated her multiple Article 92 offenses at NJP . An Under Other Than Honorable Conditions discharge is warranted when a member engages in conduct involving one or more acts or omissions that constitute a significant departure from the conduct expected of members of the Naval Service. Based on the Applicant ’ s length of service and frequent misconduct, t he NDRB found the characterization of the Applicant’s discharge to be equitable and consistent with the characterization of discharge given others in similar circumstances. Relief denied.
Issue 3 : (Decisional) (Propriety/Equity) RELIEF NOT WARRANTED. The Applicant’s father contends her discharge should have been Honorable and based on her mental health issues caused by MST. Department of Defense regulations provide that disciplinary separations supersede disability separations. Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons. Per regulations, the initiation and submission of medical boards are at the discretion of the individual physician. There is no indication in the evidence of record , or in the documentation submitted by the Applicant , that the Applicant was recommended for, or processed for , a medical board by proper authority. Further, the evidence of record does not indicate that proper authority erred by not initiating a medical board for the Applicant. 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 Board for Correction of Naval Records can grant this type of narrative reason change. 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 ’s next of kin remain eligible for a personal appearance hearing for a period of fifteen years from the date of discharge. The Applicant ’s father 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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