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USMC | DRB | 2014_Marine | MD1401021
Original file (MD1401021.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20140502
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)       20080109 - 20080921     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20080922     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20131010      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 19 D a y ( s )
Education Level:        AFQT: 50
MOS: 5811
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations (per DD 214):      Rifle Pistol

Periods of IHCA : EXACT DATES, FIVE DAYS TOTAL [Extracted from Applicant’s Rebuttal to Page 11 Entry/Matters for Consideration letter to the Commanding General, Marine Corps Installations East]

NJP:

SCM:

SPCM:

CIVIL ARREST:

- Date NFIR :      Charges: Communicating a threat [Extracted from Applicant’s Rebuttal to Page 11 Entry/Matters for Consideration letter to the Commanding General, Marine Corps Installations East]

CC:

Retention Warning Counseling :

- Date NFIR :      For communicating a threat under Article 134 [Extracted from Applicant’s Rebuttal to Page 11 Entry/Matters for Consideration letter to the Commanding General, Marine Corps Installations East]








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. Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 1 September 2001 until Present, Paragraph 1005, DISCHARGE FOR EXPIRATION OF ENLISTMENT OR FULFILLMENT OF SERVICE OBLIGATION .
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 her discharge was improper because she was extended for 20 days beyond her EAS due to being placed on legal hold for special court-martial charges which were dropped one day before her End of Active Service ( EAS ).
2.       The Applicant contends that her discharge characterization is inequitable because threatening words are not wrongful if made to a medical provider in the course of treatment for mental issues.
3.       (Board Issue) The Applicant was separated due to completion of required active service.
Decision


 Date: 20 1 4 1001            Location: Washington D.C .         R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall .
Discussion

 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 sta ndards of equity and propriety. The Applicant’s record of service included no 6105 counseling warnings and no misconduct resulting in nonjudicial punishment or court-martial. However, the Applicant ’s submitted documentation to this board and her statement to the Commanding General, Marine Corps Installations East in rebuttal to her separation page 11 entry indicated she was arrested and charged for communicating a treat to a medical personnel resulting in a 6105 counseling warning and two weeks of treatment in an inpatient mental health facility followed by five days of pretrial confinement in the Onslow County Jail. The record of evidence shows the Applicant was placed on legal hold on 22 August 2013 pending for of the UCMJ: Article 134 ( General article; threat, communicating ). Her command decided to drop the SPCM charges one day prior to her previously scheduled EAS and instead allowed her to separate due to the completion of her required active service. However, due to the event leading up to her placement on legal hold and the related charges her command notified her by a page 11 entry of their intention to separate her with a General (Under Honorable Conditions) characterization of service. The Applicant exercised her right to submit a statement in rebuttal to the page 11 entry and characterization recommendation to the Commanding General, Marine Corps Installations East.

: (Decisional) ( ) . The Applicant contends her discharge was improper because she was extended for 20 days beyond her EAS due to being placed on legal hold for special court-martial charges which were dropped one day before her EAS. The evidence of the record clearly shows the Applicant was properly involuntarily extended and put on legal hold on 22 August 2013. 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 her issue. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that she was improperly held beyond her EAS in order to administratively process her for misconduct charges that were dropped from consideration as part of a court-martial proceeding. The evidence of the record as well as evidence provided by the Applicant shows that she spent a considerable amount of time at an inpatient treatment facility and in pretrial confinement and restriction during the period between her placement on legal hold and her charges being dropped one day prior to her EAS. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case. Relief denied.

: (Decisional) ( ) . The Applicant contends that her discharge characterization is inequitable because threatening words are not wrongful if made to a medical provider in the course of treatment for mental issues. 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 her issue. The NDRB requested the Applicant’s medical treatment records, but the VA was unable to locate them. Though the Applicant may feel that mental health issues were the underlying cause of her misconduct, the record reflects willful misconduct that demonstrated she was unfit for further service. The evidence of record did not show that the Applicant was either not responsible for h er conduct or that he should not be held accountable for her actions. To the contrary, the Applicant’s misconduct was precipitated by her outrage over not being diagnosed with a mental illness to the extent she felt she should have been. Communicating a threat including a plan to carry out the threat , which resulted in arrest , hospitalization, and special court-martial charges , w as a conscious decision to violate the tenants of honorable and faithful service regardless of the venue the threat was issued due to the manner it was conveyed and the proximity to the individual threatened. Her attending medical staff determined she was a threat to herself and others and took appropriate actions to prevent the loss of life. The board found this issue to be without merit. Relief denied.

: (Decisional) ( Board Issue) ( ) . The Applicant was separated due to completion of required active service. In accordance with Paragraph 1004 of the Marine Corps Separation and Retirement Manual, an Honorable characterization of service upon the expiration of active duty is appropriate when the quality of a Marine’s service has met the standards of accepted conduct and performance of duty for military personnel. Therefore, characterization of service will be Honorable for Marines with average Proficiency marks of 3.0 or higher and average Conduct marks of 4.0 or higher. The Applicant completed h er obligated service and h er overall marks for proficiency and conduct were 4.3 and 4. 3 , respectively. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the NDRB discerned no impropriety in the discharge action but did discern an inequity in the characterization of the Applicant’s service due solely to the lack of proper administrative and legal processing for her end of service misconduct event . The NDRB voted to upgrade the characterization of service to Honorable. Relief granted.
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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