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USMC | DRB | 2014_Marine | MD1400345
Original file (MD1400345.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: ADMINISTRATIVE
        
Summary of Service

Prior Service:
Inactive:         USMCR (DEP)       19950615 - 19960610     Active:   19960611 - 200 01207 HON
                                    20001208 - 20041220 HON
Period of Service Under Review:
Date of Current Enlistment: 20041221     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20061204      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 17 D a y ( s )
Education Level:        AFQT: 80
MOS: 2651/0211
Fitness R eports:

Awards and Decorations (per DD 214):      Rifle Pistol (3) (3) (8) JMUA CoC LoA CoA

Periods of UA / CONF :

I n Hands of Civil Authorities: 20060817-20061203, 106 days

NJP:     SCM:              SPCM:    CC:

CIVIL ARREST:

- 20060816 :       Charges: 2 counts of Abduction and Kidnapping, 2 counts of Assault and Battery, 2 counts of Breaking and Entering with intent to commit a Felony.

Retention Warning Counseling :

- 20060824 :       For your commission of a serious offense

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:                  Other Documentation:    
                  Additional Statements:
          From Applicant:           From/To Representation:           From/To Congress member:        


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

Applicant’s Issues

 1 .       The Applicant contends he was not afforded all applicable rights during the separation process.
2 . The Applicant contends separation proceedings were initiated based on allegations of civil misconduct, and his separation was completed prior to any conviction on the alleged offenses in civilian court.
3.       The Applicant contends his misconduct was the direct result of P ost- T raumatic S tress D isorder (PTSD) developed from combat tours to Djibouti and Iraq.
4.       The Applicant contends his discharge was based on one incident and is not reflective of his 10 years of honorable service.
5.       The Applicant contends his post-service conduct warrants consideration for an upgrade.

Decision

 Date: 20 1 4 0710           Location: Washington D.C .         R epresentation :

By a vote of the Characterization shall UNDER OTHER THAN HONORABLE CONDITIONS .
 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 Djibouti from November 2003 to April 2004 in support of Operation ENDURING FREEDOM and completion of a deployment to Iraq from August 2004 to February 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 in his current enlistment included 6105 counseling warning and civil arrest for two counts of abduction and kidnapping, two counts of assault and battery, and two counts of breaking and entering with the intent to commit a felony . 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 rights to consult with a qualified counsel and submit a written statement but right to an administrative board.

Issue 1: (Decisional) (Propriety) RELIEF NOT WARRANTED. The Applicant contends he was not afforded all applicable rights during the separation process. The NDRB conducted a thorough review of the Applicant’s service record, his statement and submitted documents, and the documentation associated with his separation proceedings and determined he received full due process and all applicable rights. Relief denied.
Issue 2: (Decisional) (Propriety) RELIEF NOT WARRANTED. The Applicant contends separation proceedings were initiated based on allegations of civil misconduct, and his separation was completed prior to any conviction on the alleged offenses in civilian court. The Applicant was discharged for Misconduct (Serious Offense), not Misconduct (Civilian Conviction). In accordance with the Marine Corps Separation and Retirement Manual, servicemembers may be separated based on the commission of a serious military or civilian offense when the commanding officer believes the specific circumstances of the offense warrant separation and the offense would warrant a punitive discharge if adjudicated at trial by court-martial for the same or closely related offense. Commission of a serious offense does not require adjudication by nonjudicial or judicial proceedings or civilian conviction, however, the offense must be substantiated by a preponderance of evidence. The Applicant’s arrest for numerous felonies served as the preponderance of the evidence. The NDRB determined his discharge for Misconduct (Serious Offense) was proper. Relief denied.

Issue 3: (Decisional) (Propriety/Equity) RELIEF NOT WARRANTED. The Applicant contends his misconduct was the direct result of P TSD developed from combat tours to Djibouti and Iraq. The Applicant submitted two post-service psychological evaluations that diagnosed the Applicant with PTSD and Alcohol Dependence. The NDRB conducted a thorough review of the Applicant’s service records, and after considering his statements and two psychological evaluations, the NDRB determined PTSD did not mitigate his misconduct as there was no indication that he was not responsible for his actions or should not be held accountable for his misconduct. Relief denied.

Issue 4: (Decisional) (Propriety/Equity) RELIEF NOT WARRANTED. The Applicant contends his discharge was based on one incident and is not reflective of his 10 years of honorable service. The Applicant received Honorable characterizations of service for his first two enlistments from June 1996 to December 2004. Each period of enlistment is an independent obligation and characterization is determined for that specific period of time. During his third enlistment, he was arrested by civil authorities for abduction and kidnapping, assault and battery, and breaking and entering and was processed for administrative separation for Misconduct (Serious Offense). Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the to maintain proper order and discipline. Felony civilian charges warrant processing for administrative separation regardless of grade, performance, combat deployments, awards, or time in service. This usually results in an unfavorable characterization of discharge or, at a maximum, a punitive discharge and possible confinement if adjudicated and awarded as part of a sentence by a special or general court-martial. However, his command did not pursue a punitive discharge but opted instead for the more lenient administrative discharge. The NDRB found the characterization of the Applicant’s discharge was equitable and consistent with the characterization of discharge given others in similar circumstances. Relief denied.

Issue 5: (Decisional) (Equity) RELIEF NOT WARRANTED. The Applicant contends his post-service conduct warrants consideration for an upgrade. The NDRB is authorized to consider post-service factors in the re-characterization of a discharge. However, there is no law, or regulation, that provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to exist during the period of enlistment in question. Besides the Applicant’s statement on the DD Form 293, he failed to provide any documentary evidence on his behalf for post-service consideration. The Applicant could have provided documentation as detailed in the Post-Service Conduct paragraph in the Addendum with the recognition that 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. Without post-service documentary evidence, the Board determined the awarded characterization of service shall remain Under Other Than Honorable Conditions. 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.

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 , Articles 128, 129, and 134 .


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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