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USMC | DRB | 2014_Marine | MD1401259
Original file (MD1401259.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)       20060207 - 20060917     Active:   20060918 - 20100303

Period of Service Under Review:
Date of Current Enlistment: 20100304     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20140430      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 27 D a y ( s )
Education Level:        AFQT: 35
MOS: 0311
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations (per DD 214):      Rifle Pistol (2) ACM (w/ 2 stars) (w/ star) (3) LoA

Periods of CONF : 20131207 – 20140303, 87 days

NJP:

SCM:

SPCM:

- 20140304 :       Article 91 ( Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer ) 2 specifications
         Specification 1: On or about 20131208, disrespectful toward SSgt H_
         Specification 2: On or about 20131208, disrespectful toward Sgt J_
         Article 117 ( Provoking speeches or gestures ) 2 specifications
         Specification 1: On or about 20131208, wrongfully use provoking words, to wit: “hit me” toward Sgt J_
         Specification 2: On or about 20131208, wrongfully use provoking words, to wit: “hit me” toward SSgt H_
         Article 134 (General article) 2 specifications
         Specification 1: On or about 20131208, drunk and disorderly
         Specification 2: On or about 20131208, as a result of wrongful previous overindulgence in intoxicating liquor or drugs, incapacitated for the proper performance of his duties.
         Sentence : six months

CC:

Retention Warning Counseling :

- 20130826 :       For your assignment to the Marine Corps BCP.


Administrative Corrections to the Applicant’s DD 214

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

          “ MISCONDUCT ”
        
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 P1900.16E), 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 .

C. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article s 91 and 128.



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

Applicant’s Issues

 1.       The Applicant seeks VA medical treatment for his PTSD.
 2.       The Applicant contends his PTSD led to his misconduct.

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.

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. The Applicant’s service record documents completion of a deployment to Kuwait/Iraq from March to October 2008 and a deployment to Afghanistan from March to October 2011 , conducting combat operations in support of Operation IRAQI FREEDOM and Operation ENDURING FREEDOM.

The Applicant’s record of service included 6105 counseling warning and for of the UCMJ: Article 91 (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer , 2 specifications ), Article 117 (Provoking speeches or gestures , 2 specifications ), and Article 134 (General article , 2 specifications ; [ Specification 1: On or about 20131208, drunk and disorderly ] and [ Specification 2: On or about 20131208, as a result of wrongful previous overindulgence in intoxicating liquor or drugs, incapacitated for the proper performance of his duties ]) . The record also indicates he was involved in domestic abuse against his spouse and killed her cat. Based on the offenses committed by the Applicant, command administratively processed for separation. When notified of a dministrative separation processing using the procedure, the Applicant rights to consult with a qualified counsel and submit a written statement, but waived his right to request an administrative board . The Applicant was notified of separation proceedings for Pattern of Misconduct and Commission of a Serious Offense. T he Commanding General, 1st Marine Division (REIN) separation letter states that the Applicant is being separated due to domestic abuse against his spouse.

: (Nondecisional) The Applicant seeks VA medical treatment for his PTSD. The NDRB cannot grant a change based solely on this issue; however, the Applicant should be aware that the VA has announced special VA enrollment access for PTSD and mental health treatment to combat veterans discharged under other than dishonorable conditions. Effective Jan. 28, 2008, combat veterans discharged from active duty on or after Jan. 28, 2003 are eligible for combat veteran enhanced eligibility and enrollment placement into Priority Group 6 (unless eligible for higher enrollment Priority Group placement) for 5 years post discharge. Additionally, the VA determines the eligibility for enrollment in its programs - independent of the Applicant’s characterization of service as determined by the Marine Corps. The Applicant, as a combat veteran, is encouraged to contact his local VA affairs representative for more information and may request a review of service and determination of benefits from the VA. Alternately, he may call 1-877-222-8387 or visit the following website for more information: http://www4.va.gov/healtheligibility/Library/pubs/CombatVet/CombatVet.pdf.



: (Decisional) ( ) . The Applicant contends his PTSD led to his misconduct. The Applicant further contends he served Honorably until October 2011 when his PTSD / Mental trauma became overwhelming. October 2011 corresponds to the Applicant’s return from his Afghanistan deployment. The record shows that the Applicant was arrested on or about 11 July 2009 by Atlanta police for being drunk and disorderly at the Atlanta airport which precedes the Applicant’s contention that his PTSD / Mental trauma became overwhelming in October 2011 . The record also shows that the Applicant received written counse ling on 14 January 2009 for him being not recommended for promotion due to his pending legal and lack of judgment for drunk and disorderly during leave. Further, the Commanding General, 1 st Marine Division (REIN) separation letter states, “[The Applicant] admitted alcohol usage as early as age 8, a pattern of alcohol use from age 15 to 18, and binge drinking from age 21 to 22 of large amounts of beer and hard liquor. His history of alcohol abuse was established prior to his entry into the military.” Th e record clearly demonstrate s that the Applicant had a long history substance abuse problems prior to his claim of PTSD. Regardless , the record does show that competent medical authority determined that the Applicant’s PTSD did contribute to the Applicant’s drinking and other behaviors leading to his separation. However , the record clearly shows that the Separating Authority took the Applicant’s PTSD into proper consideration . After an exhaustive review, the NDRB determined that any further mitigation for the Applicant’s PTSD would be inappropriate . 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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