Upgrade.Vet

USMC | DRB | 2014_Marine | MD1400864

Original file (MD1400864.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20140402

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)       19940912 - 19950724     Active:

Period of Service Under Review:
Date of Current Enlistment: 19950725     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 19990808      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 15 D a y ( s )
Education Level:        AFQT: 36
MOS: 6046
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations (per DD 214):      Rifle

Periods of UA : 19960614 - 19960616, 3 days; 1997060 6 - 19970822, 10 7 days / I n Hands of Civil Authorities : 19970822 - 19970923, 32 days / CONF : 19970923 - 19971014 , 22 days

NJP:

- 19970508 :      Article 92 (Failure to obey order or regulation)
         Article 121 ( Larceny and wrongful appropriation )
         Article 134 (General A rticle)
         Awarded: Suspended:

- 19970605 :      Article 86 ( Absence without leave )
         Article 90 ( Assaulting or willfully disobeying superior commissioned officer )
         Awarded: Suspended:

SCM:     CC:

SPCM:

- 19971015 :       Art icle 86 (Absence without leave, 1997060 6 to 19970822)
         Sentence : two months

CIVIL ARREST:

- 19970822 :       Charges: Desertion from military

Retention Warning Counseling :

- 19951212 :       For unauthorized absence and failure to follow instructions.

- 19951226 :       For unauthorized absence, lack of reasonable effort to comply with Marine Corps regulations and policies, failure to obey orders, poor attitude concerning my professional and military responsibilities, and establishing a pattern of misconduct.

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 1105, DISCHARGE ADJUDGED BY SENTENCE OF COURT-MARTIAL, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 18 August 1995 until 31 August 2001.

B. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part IV, Para 403m(7)(a), Presumption Concerning Court-Martial Specifications.

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

Applicant’s Issues

1.       The Applicant contends his Staff NCO chewed him out when he asked for psychiatric counseling.
2.       The Applicant contends P ost-Traumatic Stress Disorder (P TSD ) from an aircraft training mishap off the coast of North Carolina led to his misconduct.

Decision

Date: 20140904         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 reviewed the Applicant ’ s record to see if he deployed in support of a contingency operation and was, as a consequence of that deployment, diagnosed with either PTSD or T raumatic Brain Injury . Although the Applicant deployed to the Adriatic Sea in support of Operation Joint Endeavor, he contends that his PTSD was from knowing Marines who were killed in a training mishap off the coast of North Carolina. As a result, his case did not warrant an expedited review in accordance with U.S. Cod e, Title X, Section 1553(d)(1). However, the Naval Discharge Review Board included a member who is a physician, clinical psychologist, or psychiatrist on the board.

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. With respect to a discharge adjudged by a court-martial case, 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. In response to the Applicant’s clemency request, relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts. 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), Article 90 (Assaulting or willfully disobeying superior commissioned officer), Article 92 (Failure to obey order or regulation), Article 121 (Larceny and wrongful appropriation), and Article 134 (General A rticle) , one civilian arrest for desertion, and for of the UCMJ: Article 86 (Absence without leave) . The Applicant’s service record documents a punitive conviction and punishment, as adjudged by a Special Court-Martial, on 15 October 1997. A qualified legal defense counsel represented the Applicant throughout the trial by Special Court-Martial process. Given the facts of the case, the Special Court-Martial awarded the Applicant a Bad Conduct Discharge and confinement for a period of two months. The case was submitted for review to the U.S. Navy-Marine Corps Court of Criminal Appeals without assignments of error; it was reviewed and the findings were affirmed on 30 November 1998 . Subsequently, the Navy Marine Corps Appellate Leave Activity ordered the Bad Conduct Discharge executed.

: (Decisional) ( ) . The Applicant contends his Staff NCO chewed him out when he asked for psychiatric counseling. The record contained no evidence of any wrongdoing by the Applicant’s command or anyone else. The NDRB presumes regularity in the conduct of governmental affairs in the absence of persuasive evidence to the contrary. The Applicant had the opportunity at his S pecial Court-Martial to bring forth any mitigating circumstances to include this contention, but he failed to do so. T he NDRB determined clemency is not warranted. Clemency denied.

: (Decisional) ( ) . The Applicant contends PTSD from an aircraft training mishap off the coast of North Carolina led to his misconduct. 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 did not find any reference to a medical diagnosis of PTSD 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 was the underlying cause of his misconduct, the record reflects the Applicant displayed willful and persistent misconduct demonstrated by his unauthorized absences, failure to obey order s and regulations, larceny, willfully disobeying a superior commissioned officer , and poor average Proficiency and Conduct marks of 3.1/3.2 . T he 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 an exhaustive review, the NDRB determined PTSD did not mitigate the Applicant’s misconduct. Clemency 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 is no longer eligible for additional reviews or hearings by the NDRB. The Applicant may petition the Board for Correction of Naval Records, 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 for further review using DD Form 149. Their website can be found at http://www.donhq.navy.mil/bcnr/bcnr.htm . 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

Similar Decisions

NAVY | DRB | 2011_Navy | ND1101354

Original file (ND1101354.rtf) Auto-classification: Denied

It also included one summary court-martial for violations of the UCMJ: Article 86 (Absence without leave, 2 specifications).Based on the offenses committed by the Applicant, command administratively processed for separation. 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...
USMC | DRB | 2013_Marine | MD1300666

Original file (MD1300666.rtf) Auto-classification: Denied

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. Relief denied.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of...
NAVY | DRB | 2008_Navy | ND0800439

Original file (ND0800439.rtf) Auto-classification: Denied

Types of Documents SubmittedRelated to Military Service: DD 214: Service and/or Medical Record: Other Records: Related to Post-Service Period: Employment: Finances: Education/Training: Health/Medical Records: Substance Abuse: Criminal Records: Family/Personal Status: Community Service: References: Additional Statements From Applicant: From Representation: From Member of Congress: Other Documentation (Describe) DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW...
NAVY | DRB | 2010_Navy | ND1000768

Original file (ND1000768.rtf) Auto-classification: Denied

DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1.Applicant seeks a discharge upgrade to obtain G.I. ” 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. If the action includes either a punitive or administrative discharge for misconduct or for any...
NAVY | DRB | 2009_Navy | ND0901215

Original file (ND0901215.rtf) Auto-classification: Denied

” 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. If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2...
USMC | DRB | 2012_Marine | MD1201776

Original file (MD1201776.rtf) Auto-classification: Denied

Clemency denied.Issue 2: (Decisional) (Clemency) RELIEF NOT WARRANTED. ” 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. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities.
USMC | DRB | 2012_Marine | MD1200361

Original file (MD1200361.rtf) Auto-classification: Denied

Applicant’s Request:Characterization change to: Narrative Reason change to: Summary of Service Prior Service: Inactive:USMCR (DEP)20041118 - 20041205Active: Period of Service Under Review: Date of Current Enlistment: 20041206Age at Enlistment: Period of Enlistment: Years MonthsDate of Discharge:20080226Highest Rank:Length of Service: Year(s)Month(s)27 Day(s)Education Level: AFQT:63MOS: 3531Proficiency/Conduct Marks (# of occasions):()/()Fitness Reports: Awards and Decorations (per DD...
USMC | DRB | 2011_Marine | MD1101685

Original file (MD1101685.rtf) Auto-classification: Denied

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. ” Additional Reviews : After a document review has been conducted, former members are...
USMC | DRB | 2011_Marine | MD1100584

Original file (MD1100584.rtf) Auto-classification: Denied

Applicant’s Request:Characterization change to: Narrative Reason change to: Summary of Service Prior Service: Inactive:USMCR (DEP)19970822 - 19980706Active: Period of Service Under Review: Date of Current Enlistment: 19980707Age at Enlistment: Period of Enlistment: Years MonthsDate of Discharge:20011105Highest Rank:Length of Service: Year(s)Month(s)04 Day(s)Education Level: AFQT:39MOS: 0311Proficiency/Conduct Marks (# of occasions):()/()Fitness Reports: Awards and Decorations (per DD...
NAVY | DRB | 2008_Navy | ND0801180

Original file (ND0801180.rtf) Auto-classification: Denied

Based on the severity and frequency of offenses committed by the Applicant and the lack of mitigating factors, the Board determined the “Under Other Than Honorable” discharge was the most appropriate characterization of service and upgrade would be inappropriate.After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found ADDENDUM: Information for the Applicant...

Search Decisions

Decision Text

USMC | DRB | 2014_Marine | MD1400864

Similar Decisions