ex-, USMC

Current Discharge and Applicant’s Request

Applicant’s Request:     Characterization change to:
         Narrative Reason change to:
         Reentry Code change to: NONE REQUESTED

Summary of Service

Prior Service:
Inactive:        USMCR (DEP)      19970814 - 19980727     Active:  19980728 – 20020111 HON
                                    USMC     20020112 – 20051007 HON

Period of Service Under Review:
Date of Current Enlistment: 20051008    Age at Enlistment:
Period of Enlistment: Years Months
Date of Discharge: 20090130     Highest Rank:
Length of Service: Year(s) Month(s) 23 Day(s)
Education Level:        AFQT: 47
MOS: 1833/8411
Fitness Reports:

Awards and Decorations (per DD 214):     Rifle Pistol (w/ Valor device) (2) (3) (3) -N MM CoC LoA MCRR NONE

Periods of UA/CONF:

NJP:

- 20060630:      Article
         Article 108 (Damage of military property) at 0300 on 20060610 through neglect cause $11,194.46 in damage to a government vehicle valued at $13,180.
         Awarded: Suspended:

- 20080412:      Article 2 Specifications:
         Specification 1: Wrongfully used a government vehicle while under the influence of alcohol.
         Specification 2: Failed to report the arrest of himself and another Marine to his Commanding Officer.
         Article Operated a vehicle while blood alcohol level equaled or exceeded the legal blood alcohol level of .08.
         Article Drunk and disorderly
         Awarded: Suspended:

SCM:     SPCM:    CC: NONE

CIVIL ARREST:

- 20080327: Charges: Driving under the influence of alcohol. (Taken from NAVMC 118(11) dtd 20080329)
- 20070511: Charges: Resisting arrest and drunk in public. (Taken from NAVMC 118(11) dtd 20080329)

Retention Warning Counseling:

- 20070209:      For violation of article 92, failed to provide adequate and continuous support to family members.

- 20070215:      For failure to conform to height/weight standards.

- 20080329:      For DUI arrest, failure to report arrest of passenger for drunk in public.

Administrative Corrections to the Applicant’s DD 214

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

         “”
         Block 18, Remarks, should include “CONTINUOUS HONORABLE SERVICE FROM 19980728 - 20051007”
        

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:        

Types of Witnesses Who Testified

         Expert:           Character:      

Pertinent Regulation/Law

A. Paragraph 6419, SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 18 August 1995 until 31 August 2001.

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 that undiagnosed in-service post-traumatic stress disorder (PTSD) was the underlying cause for his misconduct and discharge from the Marine Corps.

Decision


Date: 20150806           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 three 6105 counseling warnings, for of the Uniform Code of Military Justice (UCMJ): Article 92 (Failure to obey order or regulation; 3 specifications), Article 108 (Damage of military property; government vehicle total $11,194.46), Article 111 (Drunken or reckless operation of a vehicle, and Article 134 (General article; drunk and disorderly); and two civilian arrests (one for resisting arrest and drunk in public, and one for driving under the influence of alcohol). The Applicant was also charged by his command with Article 134 General article; drunk and disorderly), and Article 134 (General article; adultery), and these charges were referred by his command to a special court-martial (SPCM) for trial. The Applicant voluntarily requested to be processed for administrative separation in lieu of trial (SILT) and waive his right to an administrative board in order to avoid possible punitive discharge and confinement.

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 that undiagnosed in-service post-traumatic stress disorder (PTSD) was the underlying cause for his misconduct and discharge from the Marine Corps. The Applicant’s record shows that he deployed to Iraq in support of Operation IRAQI FREEDOM from March to July 2003, and again from March to October 2004. The Applicant was wounded in action on 13 April 2004, and was awarded the Purple Heart medal. The NDRB requested all records of medical treatment, both active duty and post-service, from the VA. The records received from the VA failed to document any request for evaluation, any diagnosis, or any findings of PTSD or other mental health concerns. Moreover, the Applicant did not provide any evidence of a diagnosis of PTSD from any other private mental health treatment provider to document his claim. The NDRB found no evidence in the record of any indications of, or diagnosis for, PTSD. Additionally, there is no evidence in either the Applicant’s service record, or the documentation he provided, that demonstrated any problems or symptoms manifesting during his enlistment from his service in Iraq. However, the Applicant was diagnosed with alcohol dependency, and admitted to inpatient Substance Abuse Rehabilitation Treatment after his arrests for DUI and drunk and disorderly conduct. Lacking any evidence of PTSD, the NDRB is unable to establish this contention as a basis for mitigation or consideration as an extenuating circumstance. 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 .

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 , or http://www.secnav.navy.mil/mra/bcnr/Pages/default.aspx 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: Effective 6 February 2015, the NDRB is authorized to change a NDRB Applicant’s Reenlistment Code if related to an accompanying change in discharge characterization or narrative, but this authority is strictly limited to those cases where an applicant’s narrative reason or characterization of discharge is changed and that change warrants revision of the previously issued reenlistment code. 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