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)      20041118 - 20050221     Active:  20050222-20091110 HON

Period of Service Under Review:
Date of Current Enlistment: 20091111    Age at Enlistment:
Period of Enlistment: Years Months
Date of Discharge: 20120103     Highest Rank:
Length of Service: Year(s) Month(s) 14 Day(s)
Education Level:        AFQT: 89
MOS: 1833
Proficiency/Conduct Marks (# of occasions): 3.3 (2) / 3.3 (2)   Fitness Reports:

Awards and Decorations (per DD 214):     Rifle Pistol (2) (3 *s) CoC

Periods of UA/CONF:

NJP:

- 20110413:      Article (Absence without leave) 2 Specifications:
         Specification 1: On or about 20110323 fail to go to appointed place of duty to wit: morning formation at approximately 0530
         Specification 2: On or about 20110406 fail to go to appointed place of duty to wit: morning formation at approximately 0530
         Article (Failure to obey order or regulation) on or about 20110311 at approximately 2330 had live ammunition in his rifle.
         Awarded: Suspended:

SCM:

- 20111024:      Article (Disrespect toward superior commissioned officer) Behave himself with disrespect toward a 1 ^st Lt, his superior commissioned officer, by dropping his pants and saying “now that’s a beautiful cock…go ahead take a look” or words to that effect and repeatedly referring to 1 ^st LT as “sunshine”.
         Article (Failure to obey order or regulation) Wrongfully ingested pills, with the intent to induce stupefaction.
         Article (Drunken or reckless operation of a vehicle, aircraft or vessel) Did on or about 20110828 operate a passenger car while impaired by narcotics.
         Article (Assault) 2 Specifications:
         Specification 1: Did on or about 200704 push female body against a wall, hold his hands to female’s throat, grabe female by the hair with his hands, slap female in the head.
         Specification 2: Did on or about 20070409 tackle female with his body, kick female in the ribs with his foot, strike female in the face with his elbow, choke female with his arms, choke female with his hand, strike female in the head with his hand, throw female to the ground with his hands, and cover female’s mouth with his hand.
         Article (General article) 2 Specifications:
         Specification 1: Did on or about 20110409 wrongfully communicate to female a threat, to wit “If you don’t shut up, bitch, I’ll kill you” or words to that effect.
         Specification 2: Did on or about 20110409 willfully and wrongfully confine and hold female, a person not a minor, against her will.
         Sentence: (20111118-20111215)
         CA: 3dAABn, 1 ^st Mar Div

SPCM:

CC:

Retention Warning Counseling: 5

- 20110419:      For failed room inspection on 20110415.

- 20110404:      For article 91 and article 92/

- 20110420:      For NJP for violation of article 86 x 2 and 92 of the UCMJ.

- 20111207:      For summary court marital on 20111024 for violation of article 86 of the UCMJ.

- 20111207:      For processing of administrative separation under Other Than Honorable conditions.

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. 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 contends his misconduct is mitigated by abuse he suffered from his command after he reported wrong doings of his leadership to the Inspector General.
2.       The Applicant contends his alcohol and drug abuse in service was the result of combat related post-traumatic stress disorder (PTSD).
3.       The Applicant contends his post-service conduct warrants consideration for an upgrade of his discharge to Honorable.

Decision


Date: 20150319           Location: Washington D.C.        Representation:

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 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; for of the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave; 2 specifications), and Article 92 (Failure to obey order or regulation); and for of the UCMJ: Article 89 (Disrespect toward superior commissioned officer), Article 92 (Failure to obey order or regulation), Article 111 (Drunken or reckless operation of a vehicle, aircraft or vessel), Article 128 (Assault; 2 specifications), and Article 134 (General article, 2 specifications). The Applicant also had a pre-service alcohol abuse waiver for a civilian arrest and conviction prior to entering the Marine Corps, and acknowledged complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on (NFIR). 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.

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 in Iraq from April to November 2007, conducting combat operations in support of Operation IRAQI FREEDOM. 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.

: (Decisional) () . The Applicant contends his misconduct is mitigated by abuse he suffered from his command after he reported wrong doings of his leadership to the Inspector General (IG). The Applicant’s record shows his troubles with misconduct began in April 2011. In October 2011, the Applicant made a complaint to the IG about abuse within his command. The IG investigated the Applicant’s complaint, but determined the Applicant’s accusations of mistreatment were unfounded, and his command’s decision to process him for administrative separation was a result of his own misconduct. The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that his command mistreated him. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case. Relief denied.

: (Decisional) () . The Applicant contends his alcohol and drug abuse in service was the result of combat related post-traumatic stress disorder (PTSD). The Applicant was diagnosed with PTSD in service, and provided with mental health counseling at Naval Hospital Camp Pendleton. However, he was screened by medical authorities, and found fit for separation. The Applicant was referred to the Department of Veterans Affairs (VA) for continued treatment after his discharge. Though the Applicant may feel that PTSD was the underlying cause of his misconduct, the record reflects willful misconduct that demonstrated he was unfit for further service. The evidence of record did not show that the PTSD was a sufficient mitigating factor to excuse the Applicant’s conduct or accountability concerning his actions. In addition, the Applicant’s record shows he had a pre-enlistment waiver for alcohol abuse from a civilian arrest and conviction. The Applicant received intensive in-patient alcohol and drug rehabilitation treatment from May to June 2011 while serving in the Marine Corps. After an exhaustive review, the NDRB determined that PTSD did not mitigate the Applicant’s misconduct. Relief denied.

: (Decisional) () . The Applicant contends his post-service conduct warrants consideration for an upgrade of his discharge to Honorable. The NDRB considers 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. The Applicant provided a personal statement, evidence of college transcripts, evidence of post-service VA counseling and rehabilitation treatment, job training certificates, evidence of community volunteer work, and two character references. The Applicant could have provided documentation as detailed in the Post-Service Conduct paragraph in the Addendum , however, completion of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case by case basis to determine if post-service conduct establishes that the in-service misconduct was an aberration. To warrant an upgrade, the Applicant’s post-service efforts need to be more encompassing. The Board determined that the documentation submitted by the Applicant does not demonstrate if in-service misconduct was an aberration. The characterization of service received was appropriate considering the length of service and UCMJ violations. 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