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USMC | DRB | 2014_Marine | MD1400699
Original file (MD1400699.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20140307
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:         NONE              Active:  

Period of Service Under Review:
Date of Current Enlistment: 20050331     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20130331      H ighest Rank:
Length of Service:
         Inactive:        Y ea r ( s ) M on th ( s ) 00 D a y ( s )
         Active:  Y ea r ( s ) M on th ( s ) 02 D a y ( s )
 Education Level:        AFQT: 59
MOS: 3531 / 3533 / 3500
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations (per DD 214):      Rifle Pistol ACM (2) CAR NUC SMRM NDSM ACM (WITH 1 STAR) ICM (WITH 1 STAR) GWOTSM (2) SSDR (2) AFRM (WITH “M” DEVICE) AFRM NATAL LoC CoA LoA (2) MM

Periods of UA / CONF : UA: 20111015 - 20111017, 3 days / CONF:

NJP:

- 20070316 :       Article (Assault)
         Article (General A rticle - drunk and disorderly)
         Awarded: Suspended:

- 20111019 :      Article (Absence without leave)
         Article (Failure to obey order or regulation)
         Awarded: Suspended:

- 20120322 :      Article (Absence without leave)
         Article (Failure to obey order or regulation)
         Awarded: Suspended:

SCM:     SPCM:    CC:

CIVIL ARREST:

- 20130222 :       Charges: Multiple counts including simple battery during a traffic stop where it was said that the member was being combative and had to be placed in a four point restraint.
         [Extracted from Commanding Officer letter dated 20130 2 28 ]


Retention Warning Counseling :

- 20070319 :       For assault and drunk and disorderly.

- 20111019 :       For unauthorized absence and disobeying a lawful order.

- 20120322 :       For unauthorized absence from my appointed place of duty on 20120322 and failure to obey a lawful order.

Administrative Corrections to the Applicant’s DD 214

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

          “ ”
         “ MARCORSEPMAN 6210.3 ”
         “ HKA1 ”
         “ MISCONDUCT ”
         “ (3) 20111015-20111017 ”

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 seeks Department of Veterans Affairs ( VA ) benefits.
2.       The Applicant contends his in-service conduct warrants an Honorable characterization.
3.       The Applicant contends he was diagnosed with P ost-Traumatic Stress Disorder (P TSD ) and several injuries requiring surgery and was medically retired by the Marine Corps .
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 deployment s to Iraq from August 2006 to March 2007and to Afghanistan from July 2010 to February 2011 , conducting combat support operations in sup port 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 included 6105 counseling warnings, for o f the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave , 2 specifications ) , Article 92 (Failure to obey order or regulation , 2 specifications ) , Article 128 (Assault) , and Article 134 (General A rticle - drunk and disorderly) , and a civil arrest for multiple counts including simple battery during a traffic stop . Based on the offense s 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 .

: (Nondecisional) The Applicant seeks 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 Honorable characterization. The NDRB noted numerous mistakes on the Applicant’s DD Form 214 with an end date of 31 March 2013 and will recommend to the Commandant of the Marine Corps that his DD Form 214 be updated to reflect his General discharge for Misconduct (Pattern of Misconduct) per Marine Corps Separation and Retirement Manual paragraph 6210.3. 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, which included three NJPs, three retention warnings, and a civil arrest, 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 he was diagnosed with PTSD and several injuries requiring surgery and was medically retired by the Marine Corps. The Applicant was not medically retired from the Marine Corps. Rather, he was discharged due to a Pattern of Misconduct. In February 2013, d ue to combat-related should er injuries , the Physical Evaluation Board rated the Applicant as 20% disabled and determined he was unfit for further service due to physical disabilities. While awaiting a medical discharge, however, the Applicant’s continued misconduct led the Applicant’s command to notify him of administrative separation processing for Misconduct (Serious Offense) and Misconduct (Pattern of Misconduct). Department of Defense disability regulations do not preclude a disciplinary separation. Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons , such as medical . 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 B oard for Correction of Naval Records can grant this type of narrative reason change.
When notified of administrative separation proceedings for Misconduct on 28 February 2013, the Applicant acknowledged, in writing, that he could receive an Under Other Than Honorable Conditions characterization, and he waived his rights to consult with counsel, submit a written statement, and appear before an administrative separation board. The record shows the Applicant had been diagnosed with PTSD and possible T raumatic Brain Injury (T BI ) while in service. A VA determination letter dated 23 November 2012 shows the Applicant was rated a 10 percent disability rating for TBI. In the 29 March 2013 letter approving the Applicant’s General discharge for a Pattern of Misconduct, t he Commanding General, 4 th Marine Logistics Group states, “SNM was diagnosed with PTSD , and it was documented that the PTSD may have been a contributing factor to the [Applicant’s] misconduct. While that does not excuse SNM’s misconduct and behavior, the command has recommended SNM be separated with a General (Under Honorable Conditions) characterization to ensure SNM has the opportunity to pursue treatment and care via the VA.” After an exhaustive review, the NDRB determined the Applicant’s command and Separation Authority considered his PTSD and TBI when recommending and approving a lenient General discharge. The NDRB determined that further mitigation is not warranted, and his General discharge for a Pattern of Misconduct 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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