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)      20050831 - 20051106     Active: 

Period of Service Under Review:
Date of Current Enlistment: 20051107    Age at Enlistment:
Period of Enlistment: Years Months
Date of Discharge: 20091109     Highest Rank:
Length of Service: Year(s) Month(s) 00 Day(s)
Education Level:        AFQT: 81
MOS: 0311
Proficiency/Conduct Marks (# of occasions): () / ()   Fitness Reports:

Awards and Decorations (per DD 214):     Rifle (2) (2) ACM MM CoA

Periods of CONF:

NJP:

- 20060922:      Article (Failure to obey order or regulation)
         Awarded: to E1, 60 days Suspended: 30 days

- 20091029:      Article (Absence without leave; 20090925-20090928, 3 days)
         Article (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer)
         Article (Failure to obey order or regulation) 2 specifications
         Specification 1: Having knowledge of a lawful order issued by the Base General, to wit paragraph 1630 8D for DOD decal, an order which it was his duty to obey did, on board MCAGCC 29 Palms, failed to obey the same by displaying a DOD Decal without proper authorization.
         Specification 2: Violate a lawful general regulation to wit SNM drove on base with a suspended license, SNM drove with expired insurance, SNM drove with expired registration, and failed to wear his seatbelt
         Awarded: to E2 Suspended:

SCM:     SPCM:    CC:

Retention Warning Counseling:

- 20060922:      For being the subject of Battalion Office Hours conducted by the Commanding Officer, 2d Battalion 7th Marines.

- 20090831:      For violation of article 86 of the UCMJ in that SNM secured himself on 090828 prior to liberty being sounded by the company commander.

Administrative Corrections to the Applicant’s DD 214

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

         Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, should read: “Rifle Expert Badge, Marine Corps Good Conduct Medal, Purple Heart, Combat Action Ribbon (2ndAwd, Iraq/Afghanistan), Sea Service Deployment Ribbon (2ndAwd), Afghanistan Campaign Medal, Iraq Campaign Medal, Global War on Terrorism Service Medal, National Defense Service Medal, NATO Medal-ISAF Afghanistan, Meritorious Mast, Certificate of Appreciation, Navy Unit Commendation”

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

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 seeks an upgrade to enhance employment opportunities / educational opportunities.
2.       The Applicant contends that while his final set of proficiency and conduct marks were poor, that his average proficiency and conduct marks in service were sufficient to rate an HONORABLE characterization of service as evidenced by his award of a Good Conduct Medal during his four year enlistment.
3.       The Applicant contends his combat service, award of a combat action ribbon for his actions in both Iraq and Afghanistan, purple heart, traumatic brain injury (TBI), and post-traumatic stress disorder (PTSD) should be considered as a matter of equity by this board.

Decision


Date: 20150122           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 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 a deployment to Iraq from January to August 2007, conducting combat operations in support of Operation IRAQI FREEDOM and a deployment to Afghanistan from April to November 2008, conducting combat 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 Board did complete a thorough review of the circumstances that led to discharge and the discharge process to ensure discharge met the pertinent standards of equity and propriety. The Applicant’s record of service included 6105 counseling warnings and for of the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave, one specification), Article91 (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer, one specification), and Article 92 (Failure to obey order or regulation, two specifications). The Applicant was discharged at the end of his obligated service with the characterization of General (Under Honorable Conditions).

: (Nondecisional) The Applicant seeks an upgrade to enhance employment opportunities / 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.

: (Decisional) () . The Applicant contends that while his final set of proficiency and conduct marks were poor, that his average proficiency and conduct marks in service were sufficient to rate an HONORABLE characterization of service as evidenced by his award of a Good Conduct Medal during his four year enlistment. 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 his obligated service and his overall marks for proficiency and conduct were not found 4.0/3.8 respectively. The Applicant’s record of service included two 6105 counseling warning statements and two nonjudicial punishments. The NDRB observed that the first 6105 entry and nonjudicial punishment occurred at the beginning of his enlistment and concerned an orders violation due to drinking hard liquor in his barracks room. The record shows the Applicant then served a three year period, which included two combat deployments, in such a manner as to warrant having earned a good conduct medal before committing additional misconduct just prior to his discharge. The page 11 entry documenting his separation proficiency and conduct markings was determined more likely than not included the marks from his second nonjudical punishment, which occurred approximately 10 days prior to his discharge. While the Applicant’s complete record of proficiency and conduct marks are not in the record, his final average marks are included. These marks factor in his separations marks and do not rise to the standard established for an Honorable discharge due to his average conduct during his enlistment. In the absence of credible evidence presented by the Applicant or contained within official service records, the government enjoys a presumption of regularity in the conduct of its affairs. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case. Relief denied.

: (Decisional) () . The Applicant contends his combat service, award of a combat action ribbon for his actions in both Iraq and Afghanistan, purple heart, traumatic brain injury (TBI), and post-traumatic stress disorder (PTSD) should be considered as a matter of equity by this board. The NDRB twice requested all records of medical treatment, both active duty and post-service, from the VA, but the VA was unable to locate any records concerning the Applicant. The NDRB considered the Applicant’s documented deployments, his two combat action ribbons, his purple heart, his meritorious mast citation for neutralizing an enemy sniper, award of a good conduct medal, and the written testimony provided by those supporting his application in determining that his claims of PTSD and TBI are more likely than not valid. The NDRB also extensively reviewed the Applicant’s misconduct in light of his combat service record and determined that his misconduct represented an aberration in an otherwise Honorable period of service. By a vote of 5-0, the NDRB found that the awarded characterization of service was inequitable and that relief in the form of an upgrade in the characterization of service to HONORABLE is warranted. 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 change to HONORABLE 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