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)      20020928 - 20021118     Active:           20021119 - 20070820

Period of Service Under Review:
Date of Current Enlistment: 20070821    Age at Enlistment:
Period of Enlistment: Years Months
Date of Discharge: 20101223     Highest Rank:
Length of Service: Year(s) Month(s) 03 Day(s)
Education Level:        AFQT: 53
MOS: 1391
Fitness Reports:

Awards and Decorations (per DD 214):     Rifle Pistol MM (3) KDSM JMUA CoA CoC

Periods of CONF:

NJP:

- 20080514:      Details NFIR [Extracted from Marine Corps Total Force System]

- 20091218:      Article (Failure to obey order or regulation)
         Awarded: Suspended:

SCM:

- 20100317:      Article (Failure to obey order or regulation)
         Article (False official statements)
         Sentence: HARD LABOR
         CA Action (20100318) Approved and ordered executed

SPCM:

CC:

Retention Warning Counseling:

- 20090508:      For your assignment to the Marine Corps Body Composition Program (BCP).

- 20090905:      For your four month assignment to the Marine Corps BCP.

- 20090908:      For your unsatisfactory performance while assigned to the Marine Corps BCP. Due to insufficient effort, you have not met your weight/body composition reduction goals.

- 20090908:      For failure to comply with Marine Corps standards during a Company Commander’s field day inspection on 20090904. The condition of your room and your personal appearance displayed total disregard of Marine Corps standards and were well below what is acceptable of a noncommissioned officer and a United States Marine. It is imperative that you understand the importance of responsibility, leadership, and setting the example for your subordinates and peers.

- 20091108:      For your failure to comply with established weight/body composition standards while assigned to the Marine Corps BCP.

- 20100120:      For failure to be at your appointed place of duty; DNCO for barracks 902 on 20091226. You failed to set the example of a United States Marine.

- 20100421:      For violation of Article 134 of the UCMJ in that you impersonated a non-commissioned officer. On 19 April 2010, you willfully impersonated a non-commissioned officer by placing Sergeant chevrons upon the collar of your uniform at the National Naval Medical Center Bethesda.

- 20100421:      For violation of Article 134 of the UCMJ in that you wore a certain decoration or device upon your service uniform that you were not authorized to wear. On 21 April 2010, you admitted to willfully wearing the Combat Action Ribbon on your Dress Blue “A” uniform to the Marine Corps Ball ceremony.

NDRB Documentary Review Conducted (date):        20130301
NDRB Documentary Review Docket Number:   MD12-01019
NDRB Documentary Review Findings:                 Proper as issued and that no change is warranted.

Administrative Corrections to the Applicant’s DD 214

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

         “COLF, Chip Allen”
         “03 03 05”
         Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, should read: “GOOD CONDUCT MEDAL; IRAQ CAMPAIGN MEDAL; SEA SERVICE DEPLOYMENT RIBBON (3); GLOBAL WAR ON TERRORISM EXPEDITIONARY MEDAL; HUMANITARIAN SERVICE MEDAL; GLOBAL WAR ON TERRORISM SERVICE MEDAL; JOINT MERITORIOUS UNIT AWARD; NATIONAL DEFENSE SERVICE MEDAL; KOREAN DEFENSE SERVICE MEDAL; CERTIFICATE OF APPRECIATION; CERTIFICATE OF COMMENDATION (2); MARKSMAN RIFLE BADGE, MARKSMAN PISTOL BADGE”
         “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 021119 UNTIL 070820”
         “”
         “(27) 20050622-20050728; (2) 20060417-20060418”

The NDRB will recommend to the Commandant of the Marine Corps 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. 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 post-traumatic stress disorder (PTSD) was a mitigating factor in his misconduct.

Decision


Date: 20150608           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 stated that he was diagnosed with PTSD related to his deployment in support of disaster relief operations with Joint Task Force 535 (JTF 535) and combat service both with the 31st Marine Expeditionary Unit (MEU) and from his dedicated deployment to Iraq. The Applicant’s service record documents non-combat service with the 31st MEU, JTF 535 disaster relief participation, and completion of a deployment in the Al-Assad, Iraq from March 2007 to March 2008, conducting combat service support operations in support of Operation IRAQI 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, for of the Uniform Code of Military Justice (UCMJ): Article 92 (Failure to obey order or regulation, one specification) and Article(s) on 14 May 2008 (details not found in record); and for of the UCMJ: Article 92 (Failure to obey order or regulation, one specification) and Article 107 (False official statements, one 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 exercised his right to consult with a qualified counsel and waived rights to submit a written statement and request an administrative board.

: (Decisional) () . The Applicant contends his post-traumatic stress disorder (PTSD) was a mitigating factor in his misconduct. During the Applicant’s oral testimony, both the Applicant and his counsel further stated that he was improperly separated resulting from an improper SCM that did not occur as his command forced his discharge without equitable consideration of his PTSD. The NDRB requested all records of medical treatment, both active duty and post-service, from the VA. The records received from the VA documented the Applicant’s evaluation, diagnosis, and findings of PTSD in 2008 after the Applicant communicated a threat to kill his wife upon his return from a deployment. The records received from the VA also revealed significant other mental health concerns dating before the Applicant experienced a combat zone deployment to include a diagnosis of major depression and two suicide attempts related to his then failing marriage. During the Applicant’s oral testimony he claimed these previous mental health issues were also related to PTSD and merited consideration. The NDRB, therefore, considered documented mental health issues from both of the Applicant’s enlistments.

Within the Applicant’s VA records, the NDRB noted discrepancies between the Applicant’s testimony to VA attending physicians and his service and medical records. The NDRB also found several inconsistencies between the Applicant’s testimony, his record of service, and officially recorded history. In hearing the Applicant’s testimony, the NDRB discovered that the Applicant considered several of his routine training exercises as deployments, which somewhat reconciled/explained his reporting of seven combat deployments to the VA. He testified his deployments included his overseas assignment to Japan, participation in an un-named exercise in Australia, Exercise FOAL EAGLE and ULCHI FOCUS LENS in South Korea, and Exercise COBRA GOLD in Thailand.

During his oral testimony the Applicant stated he deployed to Iraq as part of the 31st Marine Expeditionary Unit (MEU) during his first enlistment and that this experience contributed to the onset of his PTSD. The record shows that the Applicant was assigned to the 31st MEU from 21 January to 11 June 2004 during which time he spent a total of 156 days at sea over three movements and was disembarked a total of 54 days spread over two occasions. The official unit history for the 31st MEU does not document any involvement in Operation IRAQI FREEDOM during the Applicants assignment with this unit. The official history of the 31st MEU documents such a deployment after the Applicant left the command and states “From September 2004 to March 2005, the 31st MEU, including Battalion Landing Team 1st Battalion 3rd Marines with accompanying Charlie Battery of 1st Battalion 12th Marines, conducted combat actions in support of Operation IRAQI FREEDOM. Participation included a major role in Operation PHANTOM FURY, the clearing of Fallujah in November 2004.” There is, again, no mention of the 31st MEU participating in operations in Iraq prior to this entry in its official history thereby rendering the Applicant’s verbal testimony of trauma received while participating in combat operations with the 31st MEU in the vicinity of Fallujah as inconsistent with recorded history.

The Applicant further testified that his support of Joint Task Force 535 (JTF 535) contributed to his PTSD. The evidence of record does support that the Applicant was deployed in support of JTF 535 from 9 December to 18 December 2004 in support of operations in the Philippines. The Applicant testified that while there, he was traumatized by seeing all of the dead, bloated bodies of disaster victims. There is no evidence in the record to either refute or confirm his exposure to traumatic experiences during this assignment.

The record also shows that the Applicant deployed in support of Operation IRAQI FREEDOM VI from 19 March 2007 to 11 March 2008. The Applicant provided testimony that he was involved in convoy operations on a routine basis providing security for mortuary affairs recovery efforts. He stated that on this deployment he participated in combat events and was injured when his tactical vehicle was significantly damaged during an improvised explosive device detonation. The NDRB considered this testimony but also took into consideration the Applicant’s lack of combat awards on his DD-214 along with his 21 April 2010 retention warning counseling for wearing decorations or devices upon his service uniform that he was not authorized to wear; specifically the Combat Action Ribbon (CAR). The NDRB’s review of CAR eligibility criteria shows that the award of a CAR as a result of an improvised explosive device detonation was authorized before the Applicant had deployed in support of Operation IRAQI FREEDOM and that he was never authorized this award.

With respect to the Applicant’s sworn oral testimony that his SCM was unjustified, the Applicant’s service record confirms that he received a justified SCM; specifically, the NDRB found his separations notification documented he was notified for separation due to a pattern of misconduct that supported the warranting of a SCM. Presently, the Applicant claims the addition of this unjustified SCM in his record occurred as a matter of retribution. In presenting his argument, the Applicant claimed his Commanding Officer, at the time of the Applicant’s separation, had committed misconduct for which he was later forced to retire and forgo promotion to Brigadier General.

The historical facts are inconsistent with the Applicant’s claim that he filed an Inspector General’s complaint concerning the Commanding Officer’s alleged misconduct, and that his command then set out to punish him for his whistle blowing. 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 did the Applicant produce evidence to support the contention he was processed for separation based on the false entry of a SCM into his record as retribution for revealing alleged misconduct by his Commanding Officer. The Applicant’s statements alone do not overcome the historical facts related to his claim.

Additionally, if the Applicant felt he was being separated for a non-existent/unjustified SCM, it was his obligation to contest the notification at the time it was made. During an administrative separation board, the Applicant would have had the opportunity to contest the inaccuracy of the notification and obtain legal counsel to help him mount his defense. The Applicant submitted no evidence to support his contention, therefore, the NDRB must rely upon the presumption of regularity in the conduct of Government affairs and the evidence in the record showing the SCM was justified. Furthermore, the Applicant’s record of service includes eight (8) 6105 counseling warnings, two (2) NJPs and one SCM. The NDRB noted that the Applicant’s documented misconduct occurred over the span of multiple commands in this enlistment. A minimum of two (2) incidents occurring within one enlistment is sufficient for a pattern of misconduct discharge, which the Applicant clearly met (even considering as completely true the Applicant’s contention his SCM was unjustified).

The NDRB also determined after an exhaustive and detailed review of the Applicant’s extensive service and medical records that the Applicant was: eligible for and requested administrative separation for medical reasons; was also being processed as a body composition program failure; in addition to his misconduct proceedings. However, Department of Defense regulations stipulate that separations for misconduct take precedence over potential separations for other reasons. Whenever a member is being processed for a disability evaluation through the Physical Evaluation Board, but is subsequently processed 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 final action includes either a punitive or administrative discharge for misconduct or for any basis wherein an OTHER THAN HONORABLE discharge is authorized, the disability evaluation proceedings terminate, and the member’s medical board report is filed in the member’s terminated health record. In summary, Department of Defense regulations provide that disciplinary separations supersede disability separations.

Although 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 Applicant was either not responsible for his conduct or that he should not be held accountable for his actions. The Applicant was clearly afforded and used the ample resources available to him for his medical and mental health issues throughout his enlistments. The Applicant’s conduct within this enlistment was demonstrated by one summary court-martial, two (2) nonjudicial punishments, and eight (8) retention warning counseling statements. This documented misconduct was the result of conscious decisions to violate the tenants of honorable and faithful service. Given the evidence of record the NDRB did not find that PTSD was a sufficient factor to excuse or mitigate the Applicant’s pattern of misconduct. 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 not eligible for further reviews 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