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USMC | DRB | 2014_Marine | MD1400629
Original file (MD1400629.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20140212
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)       20071101 - 20080113     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20080114     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20120606      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 23 D a y ( s )
Education Level:        AFQT: 71
MOS: 0341
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations (per DD 214):      Rifle ACM ( 5 ) (2) CoC

Periods of UA / CONF :

NJP:

- 20080908 :      Article (Failure to obey order or regulation, drinking alcoholic beverages under the age of 21)
         Awarded: Suspended:

- 20090102 :      Article ( Failure to obey order or regulation , 2 specifications )
         Article (Drunken or reckless operation of a vehicle, aircraft, or vessel)
         Awarded: Suspended:

- 20100318 :       Article 92 (Failure to obey order or regulation, operate a motor vehicle under the influence of alcohol)
         Article (Drunken or reckless operation of a vehicle, aircraft, or vessel)
         Awarded: Suspended:

- 20111223 :      Article 109 (Property other than military property of the United States - Waste, spoilage, or destruction)
         Article 130 (Housebreaking)
         Awarded: Suspended:

SCM:     SPCM:    CC:

CIVIL ARREST:

- 20090101 :       Charges: DWI




Retention Warning Counseling :

- 20080908 :       For NJP on this date for violation of the UCMJ, s pecifically, Article 92, failure to obey order or regulation. You were cited for underage drinking on 20080902.

- 20090226 :       For NJP on this date for violation of the UCMJ, s pecifically, Article s 111 and 92, operating a motor vehicle under the influence of alcohol and underage drinking. On 20090101 you were cited for driving a motor vehicle at Wilmington, NC with a BAC of .15/210L.

- 20100318 :       For NJP on this date for violation of the UCMJ, s pecifically, Article s 111 and 92, operating a motor vehicle under the influence of alcohol. On 20100313 you were cited for driving a motor vehicle in Jacksonville, NC with a BAC of .10/210L.

- 20100930 :       For misconduct on 20100820 , you wrongfully and knowingly provided alcohol to a Marine who is under the legal drinking age of 21.

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 seeks an upgrade to qualify for G.I. Bill benefits .
2.       The Applicant contends his discharge was based on off duty incidents related to alcohol .
3.       The Applicant contends his on duty performance and conduct, two combat tours , and Post-Traumatic Stress Disorder (PTSD) and Traumatic Brain Injury (TBI) were not taken into consideration .
4.       The Applicant contends civilian charges that initiated his separation were dismissed and never brought to trial .
 5.       The Applicant contends his post-service conduct warrants consideration for an upgrade.

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 PTSD and TBI, 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 Afghanistan from Ma y to Nov ember 200 9 and February to August 2011 , conducting combat operations in support of 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 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 , for o f the Uniform Code of Military Justice (UCMJ): Article 92 ( Failure to obey order or regulation , 4 specific ation s), Article 109 ( Property other than military property of the United States - Waste, spoilage, or destruction , 1 specific ation ), Article 111 ( Drunken or reckless operation of a vehicle, aircraft, or vessel , 2 specific ation s ) , and Article 130 ( Housebreaking , 1 specific ation ) , and a civil arrest for driving while intoxicated. 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, submit a written statement, and request an administra tive board . By unanimous vote , the administrative separation board determined the preponderance of the evidence prove d all acts or omissions alleged in the notification, that separation was warranted with a General (Under Honorable Conditions) characterization, and that the separation should not be suspended. Th e Separation Authority and his Judge Advocate General reviewed the facts and circumstances of the case and approved the administrative separation board’s recommendations.

: (Nondecisional) The Applicant seeks an upgrade to qualify for G.I. Bill benefits . The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing educational opportunities. Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge. 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 discharge was based on off duty incidents related to alcohol . Alcohol consumption is never a rationale or an acceptable excuse for inappropriate conduct, misconduct, or poor judgment. Additionally, the record of evidence clearly shows the Applicant attended both outpatient and inpatient alcohol rehabilitation treatment, yet he c ontinued to engage in alcohol - related misconduct . Marines

are Marines 24 hours a day and may be separated based upon conduct unbecoming their position as servicemembers. And while the Marine Corps may have been founded in a tavern, all Marines are expected to consume alcohol responsibly at all times. Clearly, the Applicant was unable to do this. In the Applicant’s letter to the Separati on Authority , he clearly expressed regret for his misconduct, acknowledge d responsibility for his actions, and wrote that he understood his discharge’s resulting lifelong repercussions. The NDRB found this issue to be without merit. Relief denied.

: (Decisional) ( ) . The Applicant contends his on duty performance and conduct, two combat tours , and PTSD and TBI were not taken into consideration . During the Applicant’s almost 4 years and 5 months of service, he received four retention warnings, was found guilty of multiple UCMJ violations at four NJPs, and was arrested by civil authorities for driving while intoxicated. With this misconduct, the Applicant met the requirements to be administratively separated for Misconduct (Serious Offense) and Misconduct (Pattern of Misconduct). However, despite a consistent pattern of misconduct both before and after his combat tours, the Applicant’s command allowed him to continue his service. Another civilian incident finally led his command to determine that he was no longer fit to serve and processed him for administrative separation along with a recommendation to the Separation Authority that he receive an Under Other Than Honorable Conditions characterization of service. When notified of separation proceedings, the App licant rights to consult with a qualified counsel, submit a written statement, and request an administrative board. After hearing the details of the Applicant’s record of service, to include his frequent misconduct, below-average Proficiency and Conduct marks of 3.9/3.8 over his enlistment, two combat tours, and awards and commendations, the administrative separation board recommended the Applicant be discharged with a General (Under Honorable Conditions) characterization of service.

During his separations proceedings, the reviewing medical officer found that the Applicant was diagnosed with neither a TBI nor PTSD. The NDRB requested all records of medical treatment, both active duty and post-service, from the Department of Veterans Affairs (VA) . The NDRB found record of medical treatment for a concussion received from an IED blast on 8 February 2011. The in-theater medical documentation for this examination showed the Applicant was diagnosed and treated for a Grade II concussion without a loss of consciousness. The records received from the VA failed to document any request for evaluation, any diagnosis, or any findings of PTSD , TBI , or other mental health concerns. Moreover, the Applicant did not provide any evidence of a diagnosis of PTSD or TBI from any other private mental health treatment provider. Lacking any evidence of PTSD or TBI or any indication that he was not responsible for his behavior , the NDRB determined PTSD and TBI did not mitigate his misconduct. Based on the Applicant’s medical record and record of service, 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 . The NDRB further determined the awarded characterization of service was warranted , and the Separation Authority gave ample consideration to his combat service and on duty performance and conduct when discharging him with a lenient General characterization of service. Relief denied.
4 : (Decisional) ( ) . The Applicant contends civilian charges that initiated his separation were dismissed and never brought to trial . A servicemember may be processed for separation for the commission of a serious military or civilian offense when the offense or a closely related offense is a violation of the UCMJ and warrants a punitive discharge in accordance with the Manual for Courts-Martial. There is no requirement for adjudication by judicial or non-judicial proceedings, but the offense must be substantiated by a preponderance of the evidence. Though the civilian charges were dismissed and never brought to trial, the Applicant’s arrest led his command to determine that, in conjunction with his significant previous misconduct, he was no longer fit to serve as a Marine. Based upon his previous misconduct, and not upon a civilian conviction, his command processed him for administrative separation. After a complete review of the records, the NDRB determined he met the requirements to be discharged for a Pattern of Misconduct, and his discharge was warranted, proper, and equitable. Relief denied.

Issue 5: (Decisional) (Equity) RELIEF NOT WARRANTED. The Applicant contends his post-service conduct warrants consideration for an upgrade. 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 and six character references from former Marines and friends. The Applicant could have provided documentation as detailed in the Post-Service Conduct paragraph in the Addendum , however, 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. T he 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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