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)      20080709 - 20080907     Active: 

Period of Service Under Review:
Date of Current Enlistment: 20080908    Age at Enlistment:
Period of Enlistment: Years Months
Date of Discharge: 20120305     Highest Rank:
Length of Service: Year(s) Month(s) 27 Day(s)
Education Level:        AFQT: 55
MOS: 0311
Proficiency/Conduct Marks (# of occasions): () / ()   Fitness Reports:

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

Periods of UA/CONF:

NJP:

- 20091210:      Article (Failure to obey an order or regulation; Did on or about 20091109, violate a lawful order, to wit: MCO 1700 22E dated 20060321, by wrongfully consuming alcoholic beverages while under the age of 21.
         Awarded: Suspended:

- 20100724:      Article (Misbehavior of sentinel or lookout; On or about 20100811, while in Afghanistan, was found sleeping on his post.)
         Awarded: Suspended:

- 20100815:      Article (Misbehavior of sentinel or lookout; On or about 20100710, while in Afghanistan, was found sleeping on his post.)
         Awarded: Suspended:

- 20110119:      Article (Assault; SNM did on or about 20101215, assault a Lance Corporal by pushing him)
         Awarded: Suspended:

SCM:

SPCM:

CIVIL ARREST:

CC:

Retention Warning Counseling:

- 20091210:      For Article 92 (Failure to obey an order or regulation)

- 20100724:      For Article 113 (Misbehavior of sentinel or lookout).

- 20100815:      For Article 113 (Misbehavior of sentinel or lookout).

- 20110119: For Article 128 (Assault)

- 20110928:      For your continued pattern of misconduct. Specifically as evident by your Non Judicial Punishments on 20091210, 20100724, 20100815, 20110119 and the numerous negative counselings annotated in your training jacket. You continue to disobey direct order as evident in your negative counselings given on 20110729, 20110815, and 20110907. You have blatantly refused to participate in training and have been UA as evident in your negative counselings on 20110804 and 20110815.

- 20111109:      For your continued pattern of misconduct. Specifically as evident by your Non Judicial Punishments on 20091210, 20100724, 20100815, 20110119 and the numerous negative counseling’s annotated in your training jacket. You have repeatedly disobeyed direct orders, blatantly refused to participate in training, and have continually been UA from your appointed place of duty.

- 20111122: For failure to attend mandatory medical appointment. On 20111116, 20111117, and 20111123 you were required to be at scheduled medical appointments. You failed to attend either of these appointments, and had no valid excuse for missing them.

- 20120105: For Article 91(Insubordinate Conduct Towards a Non-Commissioned Officer.) and Article 92 (Failure to obey an order or regulation), that you did on 20111223 fail to be present at an all hands room inspection. On 20120104 you showed up to morning accountability formation without a proper haircut. You were instructed by a non-commissioned officer to get a haircut that morning. When you were eventually located at approximately 1500, you still had not gotten a haircut. When asked why, you responded that you had “pretty much given up on being a Marine”.


- 20120116:      For Article 86 (Absence without leave; Did on 20120110, miss a scheduled appointment with the Regimental Sergeant Major.)

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. Paragraph 6210, MISCONDUCT , 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 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 take advantage of educational opportunities.
2. The Applicant contends that he was in the process of being medically discharged when he was discharged for his misconduct.
3. The Applicant contends that he had only minor infractions and his service was Honorable.

Decision


Date: 2015122            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. The Applicant’s service record documents completion of deployments 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 92 (Failure to obey an order or regulation, 1 specification), Article 113 (Misbehavior of sentinel or lookout, 2 specifications), and Article 128 (Assault, 1 specification,). Based on the offense(s) committed by the Applicant, command administratively processed for separation. When notified of administrative separation processing using the procedure, the Applicant rights to consult with a qualified counsel, submit a written statement, and request an administrative board.

: (Nondecisional) The Applicant seeks an upgrade to take advantage of educational opportunities. The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing educational opportunities. Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.

: (Decisional) () . The Applicant contends that he was in the process of being medically discharged when he was discharged for his misconduct. Per regulations, the initiation and submission of medical boards are at the discretion of the individual physician. There is no indication in the evidence of record or in the documentation submitted by the Applicant that the Applicant was recommended for or processed for a medical board by proper authority. The evidence of record does not indicate that proper authority erred by not initiating a medical board for the Applicant. The Applicant was thoroughly screened for PTSD and TBI at the Mental Health Clinic, Camp Lejuene on 20110907 with no findings of meeting criteria for either. The psychiatrist also noted that “there are no psychiatric contraindications to any administrative, disciplinary, or legal action deemed necessary by the parent command.” Furthermore, on the PTSD and TBI screening in the involuntary administrative separation of the Applicant dated 20111221, he was diagnosed with combat stress and not PTSD or TBI once again. Therefore, the NDRB found the Applicant’s statement that he was in the process of being medically discharged to be without merit. Relief denied.


: (Decisional) () . The Applicant contends that he had only minor infractions and his service was Honorable. The NDRB reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis. If such a review reveals an impropriety or inequity, relief is in order. Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval Service.

An Honorable characterization of service is warranted when the quality of a member’s service generally meets the standard of acceptable conduct and performance for USMC personnel, or is otherwise so meritorious that any other characterization of service would be clearly inappropriate. An Under Other Than Honorable Conditions discharge is warranted when a member engages in conduct involving one or more acts or omissions that constitute a significant departure from the conduct expected of members of the Naval Service. The Applicant had four NJPs and nine counseling warnings in the record documenting a significant departure from conduct expected in the Naval Service.

Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Marine Corps. A preponderance of the evidence reviewed supports the conclusion that the Applicant committed a pattern of misconduct, that separation from the Naval Service was appropriate, and that an Under Other Than Honorable Conditions discharge was warranted. 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 remain UNDER OTHER THAN HONORABLE CONDITIONS and the narrative reason for separation shall remain MISCONDUCT. 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