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)      20060610 - 20060620     Active: 

Period of Service Under Review:
Date of Current Enlistment: 20060621    Age at Enlistment:
Period of Enlistment: Years Months
Date of Discharge: 20081231     Highest Rank:
Length of Service: Year(s) Month(s) 11 Day(s)
Education Level:        AFQT: 77
MOS: 3043
Proficiency/Conduct Marks (# of occasions): () / ()   Fitness Reports:

Awards and Decorations (per DD 214):     Rifle

Periods of UA/CONF:

NJP:

- 20070411:      Article
         Article
         Article
         Awarded: Suspended:

- 20080205:      Article
         Article
         Awarded: Suspended:

- 20080521:      Article
         Awarded: Suspended:

- 20080718:      Article 80 (Attempts)
         Article 2 specifications
         Awarded: Suspended:

SCM:     SPCM:    CC:

Retention Warning Counseling:

- 20070411:      For my alcohol related incidents: Drunk and disorderly on 3 February 2007 at Camp Hansen, Okinawa, Japan; Violation of curfew on 11 February 2007 at Camp Hansen, Okinawa, Japan.

- 20080718:      For the following deficiencies: Violation of Article 80 of the UCMJ, you attempted to cause bodily harm with a knife to Corporal [name redacted]. Article 92 of the UCMJ, you disobey a lawful order given by Corporal [name redacted] by refusing to put down the knife and to handed it to him. Article 92 of the UCMJ, violated the CO, HQSVC Co restriction order by leaving the barracks and going to the Hansen Shoppete where you purchased alcohol and later consumed at your BEQ quarters.

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 discharge was inequitable due to his struggles with alcoholism, depression, and anxiety at the time of his discharge.
2.       The Applicant contends his discharge was inequitable because he was provided with little help with his issues while in-service.
3.       The Applicant implies that he is a better person post-service.

Decision


Date: 20150820           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 and for of the Uniform Code of Military Justice (UCMJ): Article 80 (Attempts, one specification), Article 86 (Absence without leave, one specification), Article 92 (Failure to obey order or regulation, five specifications), and Article 134 (General article, 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 rights to consult with a qualified counsel, submit a written statement, and request an administrative board.

As a result of the Applicant’s claim that undiagnosed depression and anxiety impacted his discharge, and in accordance with U.S. Code, Title X, Section 1553 (e)(2), the Naval Discharge Review Board included a member who is a clinical psychologist or psychiatrist, or a physician with special training on mental health disorder. The Applicant’s service, medical, and Department of Veterans Affairs records did not document the Applicant was ever diagnosed with a mental health disorder while serving in the armed forces or after discharge.

: (Decisional) () . The Applicant contends his discharge was inequitable due to his struggles with alcoholism, depression, and anxiety at the time of his discharge. The NDRB requested all records of medical treatment, both active duty and post-service, from the VA. The records received from the VA did not document any request for evaluation, any diagnosis, or any findings of any mental health diagnoses or other mental health concerns. Moreover, the Applicant did not provide any evidence of a diagnosis of a mental health diagnoses from any other private mental health treatment provider to document his claim. The NDRB did not find the sole letter submitted with the Applicant’s application stating he suffers from depression and anxiety from a Vocational Rehabilitation Specialist was sufficient. The NDRB found no evidence in the record of any indications of, or diagnosis for depression or anxiety. Moreover, the Applicant’s record does not document any attempts to seek help for any mental health symptoms while in service. Similary, the NDRB did not find that the Applicant’s Alcohol consumption was a rationale or an acceptable excuse for inappropriate conduct, misconduct, or poor judgment. Lacking any evidence of any mental health diagnoses, the NDRB is unable to establish this Applicant’s claim of a mental health condition as a basis for mitigation. Relief denied.




: (Decisional) () . The Applicant contends his discharge was inequitable because he was provided with little help with his issues while in-service. 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.

The NDRB conducted an extensive review of the Applicant’s service and medical records and found significant documentation concerning the Applicant’s substance abuse history and treatment. As examples, this review revealed that the Applicant received a 11 April 2007 counseling warning statement that documented he was seen by a Substance Abuse Counselor on 12 February 2007 after having alcohol related incidents (ARIs) on both 3 and 11 February 20007. The Applicant completed a health and physical evaluation with the alcohol rehabilitiation department at Naval Hospital, Okinawa on 27 February 2007 in which he stated that he had required alcohol detoxification in the past. The Applicant’s substance abuse screening on 26 June 2007 documents his diagnosis of alcohol abuse and provides details on his two February ARIs, the first of which was for alcohol poisoning with a BAC of .333 and the second for drunk and disorderly conduct resulting in having to receive staples to his head. The Applicant’s medical record shows he successfully completed a substance abuse program on 11 July 2007 and was assigned aftercare instructions. The Applicant’s service record shows he failed to report to a substance abuse rehabilitation department appointment on 15 January 2008. The Applicant’s medical record shows he was medically screened for participation in another substance abuse program on 26 March 2008, that he was cleared for participation in such a program, had last consumed alcohol on 25 January 2008, and had required alcohol detoxification in the past. The Applicant’s record next shows he was scheduled for and issued a written order to attend a substance abuse evaluation/treatment appointment on 4 August 2008. The record shows the Applicant acknowledged this order in writing on 25 July 2008 but subsequently failed to report to this appointment.

There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that he was not provided significant assistance with his alcohol related issues while in-service and was inequitably discharged. The Applicant’s statements alone do not overcome the government’s presumption of regularity or the substancial evidence of record in this case. 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 exhibited a pattern of misconduct, that separation from the Marine Corps was appropriate, and that a General (Under Honorable Conditions) discharge was warranted. Relief denied.

: (Decisional) () . The Applicant implies that he is a better person post-service. 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 one letter of reference from a vocational rehabilitation specialist from the Department of Veterans Affairs, his parole officer, and his adopted grandmother. Given the letter of reference submitted by the Applicant’s parole officer, the NDRB conducted a public records search to determine the nature of the Applicant’s post service parole. The NDRB found that the Applicant has two felony convictions in Minnessota according to the state’s Public Criminal History website ( https://cch.state.mn.us/pcchOffenderDetails.aspx ). The first conviction was for “Simple Robbery” on 24 October 2011 and the second was for “Theft-Take/Use/Transfer Movable Prop-No Contes”t on 5 October 2012. The Applicant could have provided documentation as detailed in the Post-Service Conduct paragraph in the Addendum , knowing 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. 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 GENERAL (UNDER 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