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USMC | DRB | 2014_Marine | MD1401053
Original file (MD1401053.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20140506
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)       20021024 - 200 3 0811     Active:  

Pre-Service Drug Waiver:

Period of Service Under Review:
Date of Current Enlistment: 200 3 0812     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20070403      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 22 D a y ( s )
Education Level:        AFQT: 49
MOS: 3531
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

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

Periods of CONF :

NJP:

- 20050610 :       Article (General A rticle - discharging a n M16A2 service rifle while standing post at the entry control gate)
         Awarded: Suspended:

- 20070213 :      Article (Failure to obey order or regulation by driving a motor vehicle while under driving suspension)
          Article 107 (False official statement)
         Awarded: Suspended:

SCM:

- 20060519 :       Article (Wrongful use, possession, etc. of controlled substances)
         Sentence : HARD LABOR 45 DAYS

SPCM:    CC:

Retention Warning Counseling :

- 20040123 :       For unauthorized absence by failing to be at the PME that was scheduled for all entry level Marines at 0600, 20040122.




- 20050610 :       For violation of Article 134. In that on 20050526 at approximately 1510, while standing post with Security Platoon at the Entry Control Point, thru negligence you did discharge your weapon, an M16A2. Your conduct and behavior was reckless and immature. The employment of loaded weapons is a necessity for the accomplishment of our mission; improper handling of any weapons system will not be tolerated.

- 20070126 :       For failure to obey order and regulation. In that Pvt was arrested on 20070126 for driving on a restricted license. SNM also understood that his driving privileges aboard Camp Pendleton or any military installation ha d been suspended for 60 months due to the fact that this is his fourth time he has been caught. SNM understands that his vehicle is not to be brought aboard Camp Pendleton or any military installation.

- 200702 07 :       For failure to obey order or regulation. In that Pvt was arrested on 20070126 for driving on a restricted license. SNM also understood that his driving privileges aboard Camp Pendleton or any military installation had been suspended for 60 months due to the fact that this is his fifth time he has been caught. SNM understands that his vehicle is not to be brought aboard Camp Pendleton or any military installation.

- 20070213 :       For being found guilty at NJP for the following violations of Article 92 (Fail to obey order or regulation) and Article 107 (False official statement). In that Pvt did admit to disobeying orders and regulations by driving his POV aboard Camp Pendleton or any military installation after his notification that his driving privileges were revoked and that he was found guilty for lying to a commission ed officer in the United States Marine Corps.

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. The Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 1 September 2001 until Present,
Paragraph 6210, MISCONDUCT .

 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 his in-service conduct warrants an upgrade to Honorable .
2.       The Applicant contends he did not receive treatment for P ost- T raumatic S tress D isorder (PTSD) while in service , thereby providing mitigation for his misconduct .
3.       The Applicant contends his in-service mild T raumatic B rain I njury (TBI ) was a mitigating factor in his misconduct .
4.       The Applicant contends his disciplinary problems were the result of stress caused by hazing and the unresolved investigation into the allegations .

Decision

 Date: 20 1 4 0710   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 Iraq from February to September 200 5 and February to September 2006 , 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. 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 6105 counseling warnings, for o f the Uniform Code of Military Justice (UCMJ ): Article ( Failure to obey order or regulation , ) , Article 107 (False official statement, 1 specification) and Article ( General A rticle , ) , and for of the UCMJ: Article ( Wrongful use, possession, etc. of controlled substances , ) . The Applicant a pre-service drug waiver prior to entering the Marine Corps, acknowledged complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 23 October 2002 . Based on the Article 112a violation , processing for administ rative separation is mandatory . When notified of a dministrative separation processing using the procedure, the Applicant rights to consult with a qualified coun sel, submit a written statement , and request an administrative board . However, the record shows the Applicant did submit a written statement on 07 February 2007.

: (Decisional) ( ) . The Applicant contends his in-service conduct warrants an upgrade to Honorable. The Applicant was never awarded a Good Conduct Medal, which requires three years of misconduct-free service. Within the Applicant’s first three years of service, he was found guilty at an NJP and a Summary Court-Martial of violating several UCMJ articles. The statement in Block 18 of the Applicant’s DD Form 214 ( “ Good Conduct Medal Date Commences: 20070213 ” ) is a resetting of the three year counter and equates to his last instance of misconduct (his second NJP on 13 February 2007). With the Applicant’s misconduct during his enlistment, he met the requirements to be administratively separated for Misconduct (Serious Offense), Misconduct (Pattern of Misconduct), and Misconduct (Drug Abuse). Since the 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 m ember 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.

: (Decisional) ( ) . The Applicant contends he did not receive treatment for PTSD while in service , thereby providing mitigation for his misconduct. The NDRB requested all records of medical treatment, both active duty and post-service, from the Department of Veterans Affairs ( VA ) . The records received indicate he refused PTSD screening on 05 March 2007. While the Applicant was diagnosed with PTSD in service, this diagnosis was rendered as his administrative separation package neared completion. This resulted in two legal reviews of his separation package, both of which were “found to be sufficient in law and fact to support this administrative discharge action. ” Moreover, the Applicant’s PTSD was not rated at above 0 percent until 24 September 2010, more than three years after his discharge. There is no evidence in either the Applicant’s service record, or the documentation he provided, that demonstrated any problems or symptoms manifesting during his enlistment from his service in Iraq. Furthermore, the Applicant’s record does not document any attempts to seek help for any combat stress-related symptoms while in service. Though the VA has subsequently increased his PTSD disability percentage from 0 to 50, there is nothing to indicate that he was not responsible for his actions while in service or should not have been held accountable for his in-service misconduct. Lacking any evidence of disruptive PTSD symptoms in service and having a 0 percent rating for PTSD for more than three years post-service, the NDRB determined PTSD did not mitigate his misconduct, and his discharge was warranted, proper, and equitable. Relief denied.

: (Decisional) ( ) . The Applicant contends his in-service mild TBI was a mitigating factor in his misconduct. A comprehensive review of the Applicant’s service and medical records, to include post-service VA medical records, fails to show a TBI diagnosis as mitigation for the Applicant’s misconduct. The NDRB determined TBI did not mitigate his misconduct. Relief denied.

4 : (Decisional) ( ) . The Applicant contends his disciplinary problems were the result of stress caused by hazing and the unresolved investigation into the allegations. 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. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that he was hazed or that an unresolved investigation into hazing led to his misconduct. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case. 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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