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USMC | DRB | 2014_Marine | MD1401254
Original file (MD1401254.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20140610
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)       20051028 - 20051127     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20051128     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20100830      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 03 D a y ( s )
Education Level:        AFQT: 36
MOS: 1371
Proficiency/Conduct M arks (# of occasions): ( ) / ( 13 )          Fitness R eports:

Awards and Decorations (per DD 214):      Rifle MM

Periods of Lost Time per DD Form 214 : 20090318 – 20090322, 5 days; 20090529 – 20090603, 6 days; 20090604 – 20090613, 10 days

NJP:

SCM:

SPCM:

- 20091006 :       Article 86 (Absence without leave) 3 specifications
         Specification 1: Unauthorized absence 0730 – 0900 on or about 20090501
         Specification 2: Unauthorized absence 0845 – 1600 on or about 20090507
          Specification 3 : Unauthorized absence from 0930 on 20090518 until 0700 on 2 00905 19
         Article 92 (Failure to obey order or regulation) 4 specifications
         Specification 1: On or about 20090307 , wrongfully possess drug paraphernalia
         Specification 2: Fail to stay in barracks, an order issued by 1stSgt T_
         Specification 3 : On or about 20090501, wrongfully having an unauthorized female visitor in the barracks, outside authorized visitor hours.
         Specification 4 : On or about 20090531, travel to Mexico without using the buddy system
         Article 112a (Wrongful use, possession, etc., of controlled substance) 3 specifications
         Specification 1: On or about 20090520, wrongfully use methylenedioxymethamphetamine, ecstasy
         Specification 2: On or about 20090520, wrongfully use marijuana
         Specification 3 : On or about 20090528, wrongfully use marijuana
         Article 134 (General article, wrongfully and with intent to violate the immigration laws of the United States, bring aliens into the United States, such conduct being prejudicial to good order and discipline in the armed forces or of a nature to bring discredit on the armed forces )
         Sentence : 10 months


CIVIL ARREST:

CC:

Retention Warning Counseling :

- 20070126 :       For your assignment to the Marine Corps BCP.


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 P1900.16F), 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 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 PTSD from his Iraq deployment warrants clemency.

Decision


 Date: 20141001            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. 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.

As a result of the Applicant’s claim of PTSD or 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 stated that he was diagnosed with PTSD related to his combat service in Iraq. The Applicant’s service record documents completion of a deployment to Iraq from September 2007 to April 2008 , conducting combat service support operations in support of Operation IRAQI FREEDOM.

The Applicant’s record of service included 6105 counseling warning and for of the UCMJ: Article 86 (Absence without leave, 3 specifications), Article 92 (Failure to obey order or regulation, 4 specifications), Article 112a (Wrongful use, possession, etc., of controlled substance, 3 specifications), and Article 134 (General article, wrongfully and with intent to violate the immigration laws of the United States, bring aliens into the United States). The Applicant also had a pre-service drug waiver for using marijuana prior to entering the Marine Corps, and acknowledged complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 19 October 2005. On 12 August 2009, under the advice of counsel, the Applicant submitted a pre-trial agreement (PTA) to plead guilty to the charges in exchange for good consideration. The Applicant was convicted at a SPCM and was sentenced to a Bad Conduct discharge, reduction to E-1, and confinement for 10 months.

: (Decisional) ( ) . The Applicant contends his PTSD from his Iraq deployment warrants clemency. The Applicant provid ed a post-service mental health letter from his psychiatrist. In addition, the Applicant’s service and medical records indicate that he was diagnosed with PTSD while in-service. Though the Applicant may feel that PTSD was the underlying cause of his misconduct, the record reflects the Applicant displayed willful and persistent misconduct by using illicit drugs, smuggling aliens across the U. S. border, his unauthorized absences, and his failure to obey orders and regulations . In addition, the record of trial clearly shows the Applicant brought forth his PTSD and other mental health issues as mitigating circumstances during his court-martial. The Applicant’s defense counsel stated at the trial, “while [PTSD, Attention Deficit Disorder, Attention Deficit Hyperactivity Disorder, and Anxiety Disorder] are relevant to sentencing in this case, at no point did I feel like [the Applicant] did not understand the nature of misconduct that he committed …]. In addition, the military judge went to great lengths to ensure that the defense counsel was confident that he had exhausted all of the potential remedies in regards to the Applicant’s mental health issues as a potential defense. Further, the Applicant stated , “I know I have some issues, but it doesn’t mean that I didn’t know what I was doing.” Upon further inquiry by the military judge, the Applicant made it abundantly clear that he knew the difference between right and wrong and pled guilty to the charges. T he evidence of record d oes 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 that any further mitigation due to the Applicant’s PTSD would be inappropriate . 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 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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