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USMC | DRB | 2014_Marine | MD1400336
Original file (MD1400336.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20131203
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:         US ANG     20021217 - 20041114     Active:            20041116 - 20071021
         USMCR (DEP)      20041115


Period of Service Under Review:
Date of Current Enlistment: 20071022     Age at Enlistment:
Period of E nlistment : Years 22 Months
Date of Discharge: 20131107      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 16 D a y ( s )
Education Level:        AFQT: 48
MOS: 2621 / 3531
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations (per DD 214):      Rifle (5) (2) ACM ( 2 ) ICM ( 3 ) (2) (2) CoC CoA (6) LoA (2) MM NMCPI

Periods of UA / CONF :

NJP:

- 20120627 :       Article (Failure to obey order or regulation , 5 specifications )
         Awarded: Suspended:

- 20121019 :      Article (Assaulting or willfully disobeying superior commissioned officer, 2 specifications )
         Specification 1: Willfully disobey the military protective order
         Specification 2: Willfully disobey order to go to his work section by not going until 1400
         Article (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer)
         Article (False official statements)
         Awarded: Suspended:

SCM:     S PCM:    CC:

Retention Warning Counseling :

- 20080725 :       For being dropped from M A GTF Counterintelligence/HUMINT Course for academic failure and inability to grasp the course content.

- 20120510 :       For being derelict in the performance of duties. On the evening of 20120425 and morning of 20120426 you were derelict in your duties as a Sergeant of Marines. You fraternized by coordinating an evening of one-on-one drinking with a LCpl.


- 20120808 :       For failure to obey a lawful order. On multiple occasions, you failed to obey a lawful order issued to you by the Commanding Officer. At approximately 2230 on 20120425, you left your family home in order to spend time with LCpl, a female who is not your wife. You wife did not know your whereabouts until you returned home the following morning at approximately 0700. Due to that incident, you were issued written and verbal orders by the Commanding Officer on 20120510. The orders directed that you have no contact with LCpl outside of your official duties, and even then only while in the company of others. On multiple occasions, the first know n occasion being 20120514, you knowingly and willfully continued to have non-duty related contact with LCpl. Additional known violations include spending time with her in your family home on the evenings of 20120521, 20120523, and 20120524 while your wife was hospitalized due to complications with her pregnancy. Additionally, you and LCpl are known to have spent the night of 20120526 together in a hotel room.

- 20121024 :       For willfully disobey ing the M ilitary P rotective O rder on 20120914 signed by the CO and issued by a superior commissioned officer . Having received a lawful command at 1100 and 1315, on 20120913 from CWO4 to go to his work section and work mission, did willfully disobey the same by not going to the work section until about 1400. Treat SSgt with contempt, a noncommissioned officer by lying to him concerning a violation of a Military Protective Order about which SSgt was questioning the Marine. Even when confronted with a witness statement, Cpl continued to lie to SSgt a second time. Knowingly make a false official statement to SSgt concerning his whereabouts on 20120914. When questioned, Cpl continued to lie to SSgt concerning his whereabouts. On 20120919, at approximately 1330, the command was informed by Sgt, US Army, that the accused was seen entering his spouse’s apartment. The command also received on 20120920 forwarded texts from the accused wife in which the accused admitted to lying.

Administrative Corrections to the Applicant’s DD 214

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

          “ 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. 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 his misconduct was an isolated incident in 9 years of honorable service .
2.       The Applicant contends his administrative board did not consider his prior service with the Army or his entire service record.
3.       The Applicant contends his administrative board did not consider his mental state at the time , which has since been diagnosed as Post-Traumatic Stress Disorder (PTSD).

Decision

Date: 20140710           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. The Applicant’s service record documents completion of a deployment to Iraq in 2006 and a deployment to the Helmand Province, Afghanistan from August 2010 to February 2011 , conducting combat support 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 in his current enlistment included 6105 counseling warnings and for o f the Uniform Code of Military Justice (UCMJ): Article 90 (Assaulting or willfully disobeyin g superior commissioned officer , 2 specifications ), Article 91 (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer) , Article 92 (Fail ure to obey order or regulation, 5 specifications ), and Article 107 (False official statements) . Based on the offenses committed by the Applicant, command administratively processed for separation. When notified of a dministrative separation processing using the procedure for Misconduct (Serious Offense) and Misconduct (Pattern of Misconduct) , the Applicant rights to consult with a qualified counsel, submit a written statement, and request an administrative board . The administrative board voted 3-0 that the preponderance of the evidence supported the P attern of M isconduct and recommended his separation with a General (Under Honorable Conditions) characterization.
: (Decisional) ( ) . The Applicant contends his misconduct was an isolated incident in 9 years of honorable service. The Applicant received an Honorable characterization of service for his first enlistment from November 2004 to October 2007. Each period of enlistment is an independent obligation and characterization is determined for that specific period of time. During his second enlistment, the Applicant received four retention warnings and was found guilty at two NJPs of violating four serious UCMJ articles, thus meeting the requirements to be administratively separated for Misconduct (Serious Offense) and Misconduct (Pattern of Misconduct). Since t he Applicant was administratively separated and not separated upon expiration of enlistment or fulfillment of service obligation , t he characterization of service is determined by the quality of the member’s total performance of duty and conduct during the current enlistment, 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 in his second enlistment, 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.



: (Decisional) ( ) . The Applicant contends his administrative board did not consider his prior service with the Army or his entire service record. The Applicant submitted a copy of his administrative board’s findings where it is initialed that the administrative board did no t consider pre-service or prior- service matters. Each period of enlistment is an independent obligation, and characterization of service is determined for that specific period. Characterization of service at discharge is the recognition of a service member’s performance and conduct during a period of enlistment. The Applicant was found guilty at two separate NJPs for violatating Article 90 (Assaulting or willfully disobeying superior commissioned officer, 2 specifications), Article 91 (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer), Article 92 (Failure to obey order or regulation, 5 specifications), and Article 107 (False official statements) . These violations warrant ed a punitive Bad Conduct or Dishonorable D ischarge if adjudicated at a trial by Special or General Court-Martial. H is command chose not to pursue a punitive discharge but opted instead for the more lenient administrative discharge. When notified of separation proceedings on 13 November 2012, the Applicant’s commanding officer recommended a characterization Under Other Than Honorable Conditions , which is typical for the frequency and severity of the Applicant’s misconduct in his second enlistment. T he NDRB determined the Applicant’s administrative board to be extremely lenient in their recommendation of a General (Under Honorable Conditions) characterization and further determined that an upgrade is not warranted. Relief denied.

: (Decisional) ( ) . The Applicant contends his administrative board did not consider his mental state at the time , which has since been diagnosed as PTSD. The NDRB presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Applicant provided a letter from a Licensed Clinical Social Worker dated 21 December 2012 describing the Applicant’s symptoms as supporting the diagnosis of combat - induce d PTSD. The Commanding Officer, Marine Cryptologic Support Battalion letter dated 08 March 2013 indicates the Applicant had an in-service diagnosis of PTSD by competent medical authority. The Applicant’s administrative separation board was on 13 June 2013 , which was after his command was aware of his PTSD. The NDRB determined that the Applicant and his defense counsel would have had ample opportunity to bring forth PTSD and the Applicant’s mental state as mitigating factors during his administrative board and the separation process. The evidence provided by the Applicant does not overcome the presumption that the administrative board did not properly consider his PTSD or mental state . T he NDRB determined that any further mitigation due to the Applicant’s PTSD would be inappropriate . 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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