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USMC | DRB | 2014_Marine | MD1400460
Original file (MD1400460.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20140114
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)       20040221 - 20040531     Active:  

Pre-Service Drug Waiver:

Period of Service Under Review:
Date of Current Enlistment: 20040601     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20081121      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 03 D a y ( s )
Education Level:        AFQT: 31
MOS: 0311
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

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

Period of UA: 20081104-20081111, 8 days
I n Hands of Civil Authorities : 20080402-20080403, 2 days

NJP:

- 20071002 :       Article (Absence without leave)
         Article (Missing movement)
         Awarded: Suspended: Vacated 20071211

- 20071213 :      Article (Drunken or reckless operation of a vehicle, aircraft, or vessel)
         Awarded: Suspended:

- 20080729 :      Article (Wrongful use, possession, etc., of controlled substance , MARIJUANA )
         Awarded: Suspended:

SCM:     CC:               Retention Warning Counseling :

SPCM:

- 20080516 :       Art icle (Absence without leave , 20080121-20080402, 72 days)
         Art icle (Missing movement)
         Sentence : CONF 10 months (20080404-20080827, 146 days)




Administrative Corrections to the Applicant’s DD 214

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

          “ ”
        
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 seeks an upgrade to receive Department of Veterans A ffairs (VA) benefits .
2.       The Applicant contends his in-service conduct warrants an upgrade to Honorable .
3.       The Applicant contends his status as a psychologically wounded warrior and the suicide of his best friend mitigate his mi sconduct .

Decision

 Date: 20 1 4 0508            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 Post-Traumatic Stress Disorder (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 two deployment s to Iraq from March to October 2005 and September 2006 to May 2007 , conducting combat operations 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 a l a ffairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The 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 for o f the Uniform Code of Military Justice (UCMJ): Article 86 ( Absence without leave , one specific ation ), Article 87 ( Missing movement , one specific ation ), Article 111 (Drunken or reckless operation of a vehicle, aircraft, or vessel, one specification), and Article 112a ( Wrongful use, possession, etc., of a controlled substance , marijuana, one specification ) , and for of the UCMJ: Article 86 (Absence without leave, 72 days ) and Article 87 ( Missing movement , one specification) . The Applicant also had a pre-service drug waiver for using marijuana prior to entering the Marine Corps, and acknowledged complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 19 February 2004 . Based on the Article 112a violation, processing for administrative separation is mandatory. When notified of administrative separation processing using the procedure, the Applicant right to consult with a qualified counsel but w aived his rights to submit a written statement and request an administrative board. The Applicant’s administrative separation was suspended provided he completed the remainder of his enlistment without further misconduct. The Applicant’s record of service then documents an additional o f UCMJ Article 86 (Absence without leave ) from 04 to 11 November 2008 . Based on the additional offense committed by the Applicant, command revoked his suspended separation and discharged him Under Other Than Honorable Conditions for Misconduct (Drug Abuse) .

: (Nondecisional) The Applicant seeks an upgrade to receive VA 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.

: (Decisional) ( ) . The Applicant contends his in-service conduct warrants an upgrade to Honorable . During the Applicant’s 3 years and 10 months of service, he served two combat tours in Iraq, was found guilty of UCMJ violations, to include marijuana use, at three NJPs, and was convicted at a Special Court-Martial of missing movement and being in an unauthorized absence status for 72 days. Misconduct of this nature would typically result in a punitive Bad Conduct Discharge. However, his drug abuse violation required mandatory processing for

administrative separation. During separation processing, however, the Applicant was given yet another chance to serve honorably by having his separation suspended. Another incident of misconduct, though, resulted in the Applicant’s Under Other Than Honorable Conditions discharge. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the NDRB discerned that despite the Applicant’s significant misconduct , he was given multiple opportunities to correct his poor behavior and was given the extraordinary and unusual opportunity for both rehabilitation and to earn an honorable discharge by the Separation Authority. The Commanding General, 2D Marine Division, upon reviewing the Applicant’s complete service record, medical record, and reviewing his chain of command’s recommendations decided to “ … notify the respondent of the suspension of this administrative separation. Additionally, inform the respondent that he remains eligible to receive a discharge under honorable conditions at the end of his enlistment so long as he refrains from further misconduct during the period of suspension and meets the appropriate standards of conduct and performance.” The record of evidence goes on to show that the Applicant refused screening for rehabilitative treatment and committed additional misconduct by entering into an unauthorized leave status from 04 to 11 November 2008. This period of unauthorized absence revoked the suspension of the d ischarge and caused his immediate separation without the expiration of enlistment or fulfillment of service obligation. The NDRB found that the Applicant was not discharged for one use of marijuana but was discharged for multiple incidents of misconduct after being given several opportunities to correct his behavior and receive rehabilitative treatment. The characterization of his discharge was equitable and consistent with the characterization of discharge given others in similar circumstances. Relief denied.

: (Decisional) ( ) . The Applicant contends his status as a psychologically wounded warrior and the suicide of his best friend mitigate his mi sconduct . The Applicant submitted a detailed statement and letters from seven relatives attesting to his strong character and changes in his behavior upon his return from a second combat tour in Iraq. 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 in-service medical treatment records, but the VA was unable to locate them. Furthermore, the NDRB did not find any reference to a medical diagnosis of PTSD or any other mental health related issues in the Applicant’s service record to support his claim, and the Applicant did not provide any documentary evidence of a medical diagnosis by competent medical authorities to support his claim. Though the Applicant may feel that PTSD or a mental health issue 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. M arijuana usage , several periods of unauthorized absence, missing movement, and driving while intoxicated were all conscious decisions to violate the ten e ts of honorable and faithful service. After a thorough review of the records and the Applicant’s supporting statement and letters, the NDRB determined PTSD did not mitigate his misconduct, and his discharge was warranted, proper, and equitable. 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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