ex-, USMC

Current Discharge and Applicant’s Request

Applicant’s Request:     Characterization change to:
         Narrative Reason change to:

Summary of Service
Prior Service:

Inactive:        USMCR (DEP)      20080128 - 20080713     Active: 

Pre-Service Drug Waiver:

Period of Service Under Review:
Date of Current Enlistment: 20080714    Age at Enlistment:
Period of Enlistment: Years Months
Date of Discharge: 20100805     Highest Rank:
Length of Service: Year(s) Month(s) 22 Day(s)
Education Level:        AFQT: 44
MOS: 0811
Proficiency/Conduct Marks (# of occasions): () / ()   Fitness Reports:

Awards and Decorations (per DD 214):     Rifle ACM (WITH 1 BRONZE SERVICE STAR)

Periods of UA/CONF:

NJP:     SPCM:    CC:

SCM:

- 20100331:      Article (Wrongful use, possession, etc. of controlled substances) 2 specifications
         Sentence:
         CA Action (20100331) The sentence is approved and ordered executed. The forfeiture of pay is hereby suspended for 6 months.

Retention Warning Counseling:

- 20090209:      For violation of Article 92 (2 specifications) by not signing out in the liberty log and wearing civilian attire on phase 1 liberty.

- 20091028:      For misconduct as evidenced by violation of Article 92, failure to obey an order or regulation and Article 113, misbehavior of a sentinel. Specifically, you willfully violated the Standard Operating Procedures on Post by not wearing your prescribed personal protective equipment and having your sleeping bag on post. You were found sleeping on post.

- 20100615:      For two counts of violation of Article 134, failure to report. On the dates of 20100614 and 20100615 you failed to report to appointed place of duty for Romeo Battery morning accountability formation. You have been verbally counseled several times for being late or not showing up to your appointed place of duty. You also missed a scheduled appointment on 20100527 with Deployment Health Services.

NDRB Documentary Review Conducted (date):        20131106
NDRB Documentary Review Docket Number:   MD13-00818
NDRB Documentary Review Findings:                 Proper as issued and that no change is warranted.

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:                  Other Documentation:    
                  Additional Statements:
         From Applicant:           From/To Representation:           From/To Congress member:        

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 the Policy Letter 13-10 from Commanding General, 2d Marine Division and U.S.C. 1177 were not properly followed.
2.       The Applicant contends that new regulations would have afforded the Applicant additional rights.
3.       The Applicant contends the Medical Officer’s report was given undue weight.
4.       The Applicant contends the Medical Officer’s report was used for impermissible use.
5.       The Applicant contends his PCS, PTSD, and TBI mitigate his misconduct.

Decision


Date: 20150310           Location: Washington D.C.        Representation:

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 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 Afghanistan from April to November 2009, conducting combat support operations in support of Operation ENDURING 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 governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Applicant’s record of service included 6105 counseling warnings and for of the UCMJ: Article 112a (Wrongful use, possession, etc. of controlled substances, 2 specifications). acknowledged complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 23 January 2008. Based on the Article 112a violation, processing for administrative separation is mandatory. When notified of administrative separation processing using the procedure, the Applicant right to consult with a qualified counsel but waived his rights to submit a written statement and request an administrative board.

Issues 1-2: (Decisional) () . The Applicant contends the Policy Letter 13-10 from Commanding General, 2d Marine Division and U.S.C. 1177 were not properly followed. The Applicant further contends that new regulations would have afforded the Applicant additional rights. The NDRB presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. Although the Policy Letter 13-10 was not signed until after the Applicant’s discharge, the Applicant’s counsel stated this was the document provided by the government when a Freedom of Information Act (FOIA) request was made to obtain the policy letter referenced in the Medical Officer’s report dated 28 April 2010. The Medical Officer’s report indicates that the Applicant was screened and diagnosed with PTSD and TBI. Additionally, the Medical Officer’s report lists enclosures being submitted to the Commanding Officer, 1 ^st Battalion, 10 ^th Marines, 2d Marine Division. These enclosures included the Applicant’s Post-Deployment Health Assessment (PDHA), Post-Deployment Health Re-Assessment (PDHRA), and the medical records for his PTSD/TBI diagnoses. Therefore, the NDRB must presume that these documents were available to the Applicant’s chain of command and Separating Authority for consideration during the separation process. The NDRB discerned no impropriety and the Applicant’s separation for his misconduct was appropriate. Relief denied.


Issues 3-4: (Decisional) () . The Applicant contends the Medical Officer’s report was given undue weight and the Medical Officer’s report was used for impermissible use. Based on the evidence of record, the NDRB determined that the Medical Officer acted with proper authority and the NDRB must presume regularity in governmental affairs in that the Separation Authority and Staff Judge Advocate review of the discharge package ensured that the Applicant was afforded all of his administrative rights pursuant to the separation process. Relief denied.

Issue 5: (Decisional) () . The Applicant contends his PTSD, PCS, and TBI mitigate his misconduct. In determining discharge characterization of service, the Applicant’s conduct forms the primary basis for consideration. The Applicant’s in-service conduct included three counseling warnings and one SCM which were willful failures to meet the requirements of his contract honorably. Of note, the Applicant’s first counseling warning occurred prior to the Applicant’s stated PTSD and TBI events which demonstrates the Applicant had a history of failing to obey orders and regulations prior to his deployment. The evidence of record did not show that the Applicant’s TBI or PTSD were sufficient mitigating factors to excuse the Applicant’s conduct or accountability concerning his actions. After an exhaustive review, the NDRB determined that PTSD, PCS, and TBI did not mitigate the Applicant’s misconduct. The NDRB found the characterization of the Applicant’s discharge was equitable and consistent with the characterization of discharge given others in similar circumstances. 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 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