ex-, USMC

Current Discharge and Applicant’s Request

Applicant’s Request:     Characterization change to:
         Narrative Reason change to: MEDICAL REASONS
         Reentry Code change to:

Summary of Service

Prior Service:
Inactive:        USMCR (DEP)      20101102 - 20110313     Active: 

Period of Service Under Review:
Date of Current Enlistment: 20110314    Age at Enlistment:
Period of Enlistment: Years Months
Date of Discharge: 20141030     Highest Rank:
Length of Service: Year(s) Month(s) 17 Day(s)
Education Level:        AFQT: 50
MOS: 0351
Proficiency/Conduct Marks (# of occasions): () / ()   Fitness Reports:

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

Periods of UA/CONF:

NJP:

- 20130221:      Article
         Article
         Article
         Awarded: Suspended:

SCM:     SPCM:    CC:

Retention Warning Counseling:

- 20130221:      For the following deficiencies: Violation of Article 86—In that, [SNM], did, at 0600, on 19 February 2013, knowingly and willfully fail to return from the President’s day 72 hour liberty pass at the Commanding Officer’s prescribed time of 0600. Violation of Article 92—In that, [SNM], did, at 0600, on 19 February 2013, knowingly and willfully disobeyed a lawful order by failing to attend formation after being ordered to do so by the Company Commander prior to the President’s Day 72 hour liberty pass. Violation of Article 134—In that [SNM], did, on 19 February 2013, arrive at work under the influence of alcohol and as a result of his condition was unable to perform his duties during normal working hours.

- 20130325:      For the following violation of the UCMJ: Article 92, failure to obey order or regulation and Article 86, unauthorized absence. On 15 March 2013, you missed a medical appointment with optometry.

- 20130916:      For the following deficiencies: On 7 April 2013, you received a civilian speeding ticket for going 68 MPH in a 45 MPH speed zone. In addition, your conduct in the last 90 days has been less than satisfactory, resulting in two page 11s and one non-judicial punishment, which constitutes a pattern of misconduct.

- 20140213:      For the following deficiencies. On 11 February 2014, you were uncooperative during a planned physical fitness inventory test. On 12 February 2014, while being counseled by the First Sergeant regarding your behavior, you became disrespectful by rolling your eyes, making facial expressions and being uncooperative by intentionally ignoring questions directed to you regarding your behavior.

- 20140311:      For the following violation of the UCMJ, violation of Article 92 (Failure to obey order or regulation). On 10 March 2014, you were absent from formation at the prescribed location and time of 0700.

- 20140428:      For the following deficiencies: Article 92 violation, in that, [SNM] was negligent in his duties on 31 December 2013, when he pulled down the fire alarm and threw it out the window, causing the fire alarm to break. Such incident resulted in the U.S. Government to pay damages in excess of $100.00 to fix the said broken fire alarm.

- 20140701:      For the following violation of the UCMJ, Article 92 (failure to obey order or regulation). In accordance with MARADMIN 709/12, at approximately 1300, on 30 June 2014, you were the subject of a battalion breathalyzer test, registering a .028 blood alcohol content. This is a violation of your administrative separation pretrial agreement that states “I will not commit any act of misconduct chargable under the Uniform Code of Military Justice between the date both parties sign this agreement and the date I am separated from the Marine Corps. Any act of misconduct on my part after both parties sign this agreement and before I receive last final pay and accounting will be grounds for withdrawal from this agreement by the Convening Authority.”

Administrative Corrections to the Applicant’s DD 214

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

         “”

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 requests to be reinstated in the military.
2.       The Applicant requests a change in narrative reason for separation to medical reasons or the award of monetary benefits.
3.       The Applicant contends that he was deprived of and equitable and proper discharge or dismissal.
4.       The Applicant contends his post-service accomplishments should be considered for an upgrade.

Decision


Date: 20150618  Location: Washington D.C. Representation:

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall .
By a vote of the Reenlistment Code shall .

Discussion

As a result of the Applicant’s claim that a mental health issues impacted his service, and in accordance with U.S. Code, Title X, Section 1553 (e)(2), the Naval Discharge Review Board included a member who is a physician, clinical psychologist, or psychiatrist. The Applicant provided in-service medical documentation stating he was diagnosed with substance abuse disorders, dysthymic disorder, depression, alcoholism, adjustment disorder, and traumatic brain injury (TBI) while serving in the armed forces. During his separations proceedings the Applicant stated that his mental health diagnoses were related to his combat service in Afghanistan. The Applicant’s service record documents completion of a deployment in the Afghanistan from December 2011 to June 2012, conducting combat operations in support of Operation ENDURING FREEDOM for which he was awarded a combat action ribbon.

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), Article 92 (Failure to obey order or regulation, one specification), and Article 134 (General article, one specification). The Applicant’s record of service also shows that on 24 April 2014 he entered into a pretrial agreement to avoid a . Based on the offense(s) committed by the Applicant and his pretrial agreement, command administratively processed for separation. When notified of administrative separation processing using the procedure, the Applicant right to consult with a qualified counsel and submit a written statement and waived his right to request an administrative board.

: (Nondecisional) The Applicant requests to be reinstated in the military. 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.

: (Decisional) () . The Applicant requests a change in narrative reason for separation to medical reasons or the award of monetary benefits. Insofar as the Applicant’s request for monetary benefits, there is no requirement, or law, that grants re-characterization solely on the issue of facilitating access to VA benefits; which, based on the vague nature of the Applicant’s issue, is what the NDRB presumes is what the Applicant is seeking. Regulations limit the NDRB’s review solely to a determination of the propriety and the equity of a discharge. As such, this portion of this issue does not serve to provide a foundation upon which the NDRB can grant relief.

The U.S. Department of Veterans Affairs (VA) has announced special access to combat veterans discharged under other than dishonorable conditions. The VA determines the eligibility for enrollment independent of the Applicant’s characterization of service as determined by the Marine Corps. Effective 28 January 2008, combat veterans discharged from active duty on or after 28 January 2003 are eligible for combat-veteran enhanced eligibility and enrollment placement into Priority Group 6 (unless eligible for higher enrollment Priority Group placement) for five years after discharge. The Applicant, as a combat veteran, is encouraged to contact the VA for more information at 1-877-222-8387 or http://www4.va.gov/healtheligibility/Library/pubs/CombatVet/CombatVet.pdf .

The NDRB conducted an extensive review of the Applicant’s official records and the documentation he submitted. During the Applicant’s discharge processing he petitioned the separation authority and requested consideration for his claimed alcoholism, anxiety, depression, & constant sleep deprivation as a result of traumatic events from his first combat deployment and his troubled childhood. The 15 April 2014 Post-Traumatic Stress Disorder (PTSD) and TBI screening conducted during his involuntary separation stated that the Applicant had not reported or been diagnosed with symptoms consistent with TBI or PTSD. Furthermore, a 21 April 2014 mental health evaluation submitted by the Applicant stated “Patient reports that his combat deployment does not bother him and that he found deployment ‘fun’ despite the kinetic environment. Instead, he describes a lifelong depressed mood and difficulty showing emotion (as well as alcoholism) as his presenting problem.” This same evaluation documented that the Applicant stated he had been drinking a fifth of alcohol per day for the past 10 years. When reviewing a discharge, the NDRB does consider the extent to which a medical problem might affect an Applicant’s performance and ability to conform to the military’s standards of conduct and discipline. However, the NDRB does not consider the circumstances surrounding the Applicant’s stated condition or diagnosis to be of sufficient nature to excuse the Applicant’s misconduct.

Department of Defense regulations provide that disciplinary separations supersede disability separations. Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons, which includes medical reasons as well as administrative separations such as alcohol rehabilitation failures. 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. Further, the evidence of record does not indicate that proper authority erred by not initiating a medical board for the Applicant. 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 Board for Correction of Naval Records can grant this type of narrative reason change. Relief denied.

: (Decisional) () . The Applicant contends that he was deprived of an equitable and proper discharge or dismissal. The Applicant implies he was treated unfairly by the Separation Authority. 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 he was wrongfully discharged. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case. The evidence of the record, as documented in the Applicant’s numerous 6105 retention warnings, indicated that he acted in violation of his pretrial agreement and was leniently administratively separated per his pretrial agreement as opposed to having his administrative separations proceedings halted and becoming the subject of a special or general court-martial. At a special or general court-martial, the Applicant could have received a punitive discharge. Regardless, the commanding officer’s recommendation for separation from the pretrial agreement is just that, a recommendation. The Separation Authority determines whether the allegations in the notification of the basis for separation are substantiated by the evidence. There is no provisional guarantee that a Marine will receive anything that a local commanding officer recommends. The NDRB recognizes that serving in the military is challenging. Most servicemembers, however, serve honorably and therefore earn their Honorable discharges. In fairness to those Marines and Sailors who served honorably, Commanders and Separation Authorities are tasked to ensure that undeserving servicemembers receive no higher characterization than is due. The NDRB found the characterization of the Applicant’s discharge was equitable and consistent with the characterization of discharge given others in similar circumstances. Relief denied.

4: (Decisional) () . The Applicant contends his post-service accomplishments should be considered for an upgrade. The NDRB is authorized to consider post-service factors in the re-characterization of a discharge. However, there is no law, or regulation, that provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to exist during the period of enlistment in question. Besides the Applicant’s statement on the DD Form 293 that he would provide “affidavits, testimony, or statements attesting to character since release from active service,” he failed to provide any documentary evidence on his behalf for post-service consideration. The Applicant could have provided documentation as detailed in the Post-Service Conduct paragraph in the Addendum with the recognition that 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. Without post-service documentary evidence, the Board determined the awarded characterization of service shall remain Under Other Than Honorable Conditions. 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