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USMC | DRB | 2014_Marine | MD1400692
Original file (MD1400692.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20140304
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MARCORSEPMAN

Applicant’s Request:      Characterization change to:
         Narrative Reason change to: END OF ACTIVE SVC OR SEC AUTH

Summary of Service

Prior Service:
Inactive:         USMCR (DEP)       20010328 - 20010923     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20010924     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20041006      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 13 D a y ( s )
Education Level:        AFQT: 59
MOS: 1171
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations (per DD 214):      Rifle

Periods of CONF :

NJP:

- 20021030 :      Article 81 (Conspiracy)
         Article (Larceny and wrongful appropriation)
         Awarded: CCU Suspended:

- 20040714 :       Article (Failure to obey order or regulation)
         Awarded: Suspended:

- 20040817 :      Article (Absence without leave , 2 specifications )
         Specification s 1 and 2: UA from Body Composition Program/Remedial for physical training at 0530, 20040802 and 0530-0630, 20040809
          Article (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer)
         Awarded: Suspended:

SCM:     SPCM:    CC:

Retention Warning Counseling :

- 20030826 :       For unauthorized absence. Specifically you failed to report for Battalion Duty Clerk when you knew or should have known you had duty. It is your responsibility alone to ensure whether you have been assigned Battalion duties or not for a given month.

- 20031118 :       For your unsatisfactory performance of duties by not maintaining Marine Corps Physical Fitness standards by performing 1 pull-up with a 29:24 run time and an overall score of 90 on your semi - annual PFT.


- 20040427 :       For unsatisfactory performance of duties by not maintaining Marine Corps weight standards and/or your unsatisfactory appearance as a Marine.

- 20040713 :       For failure to appear at Bn formation following holiday 96 on 20040706. I violated Article 92 by going out of bounds without permission and due to return flight difficulties, I subsequently missed the formation. Although I did notify my chain of command that I would be late for formation, I knowingly violated the order pertaining to going out of bounds. I have been advised that my lack of self-discipline and personal accountability is contrary to the good order and discipline of this command and will not be tolerated.

- 20051202 :       For unsatisfactory performance of duties by not maintaining Marine Corps weight standards.

Administrative Corrections to the Applicant’s DD 214

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

          “ 03 00 13 ”
         “ 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 the Marine Corps failed to adequately screen him for P ost- T raumatic S tress D isorder (PTSD) upon his return from Iraq , and this undiagnosed PTSD mitigates his subsequent misconduct.
2.       The Applicant contends the underlying acts that formed the basis for the misconduct separation did not warrant a discharge under other than honorable conditions.

Decision

Date : 20 1 4 0529            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 from February to August 2003 , conducting combat service support 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 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 included 6105 counseling warnings and for o f the Uniform Code of Military Justice (UCMJ): Article 121 ( Larceny and wrongful appropriation), Article 81 (Conspiracy), Article 92 (Failure to obey order or regulation), Article 86 (Absence without leave , 2 specifications of failure to be at appointed place of duty), and Article 91 (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer). 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 administrative board .

: (Decisional) ( ) . The Applicant contends the Marine Corps failed to adequately screen him for PTSD upon his return from Iraq, and this undiagnosed PTSD mitigates his subsequent misconduct. Upon his return from Iraq in 2003, the Applicant completed a post-deployment health assessment . In August 2004, the Applicant was referred to mental health for complaints of depression due to his upcoming administrative separation, and he was diagnosed with Adjustment Disorder with depressed mood. While not diagnosed with PTSD while in service, the Applicant submitted an October 2010 psychiatric examination where the psychiatrist wrote, “In my opinion to a reasonable degree of medical certainty, the PTSD and Obstructive Sleep Apnea (OAS), which had not as yet been diagnosed or treated, materially contributed to and caused behaviors that were characterized by his superiors as a Pattern of Misconduct. In my opinion, had [Applicant’s] PTSD and OAS been diagnosed and treated, the NJPs of 7/14/04 and 8/17/04 would not have occurred and [Applicant] would not have been discharged under other than honorable conditions. ” The Applicant was administratively separated after receiving five counseling warnings and three NJPs for violations of U CMJ Articles 81, 86, 9 1, 92, and 121, including an NJP that occurred before his deployment to Iraq . Though the Applicant may feel that PTSD 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. After a complete review of the Applicant’s service records and documentation submitted with his DD Form 293, the NDRB determined neither PTSD nor Obstructive Sleep Apnea mitigated his misconduct, and his administrative separation for Misconduct (P attern of M isconduct ) Under Other Than Honorable Conditions was proper and equitable. Relief denied.

: (Decisional) ( ) . The Applicant contends the underlying acts that formed the basis for the misconduct separation did not warrant a discharge under other than honorable conditions. The NDRB reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis. If such a review reveals an impropriety or inequity, relief is in order. Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval Service. Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Marine Corps. During his three years of service, the Applicant received five counseling warnings for various misconduct and unsatisfactory performance and was found guilty of violating numerous UCMJ articles at three NJPs , thus meeting the requirements for administrative separation for Misconduct (Pattern of Misconduct) and Misconduct (Serious Offense). Since t he Applicant was administratively separated and not separated upon expiration of enlistment or fulfillment of service obligation, the 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, the NDRB determined the Applicant engaged in conduct involving one or more acts or omissions that constituted a significant departure from the conduct expected of members of the Naval Service, and the awarded characterization of service was warranted. 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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