ex-PFC, USMC
MD07-00770

Current Discharge and Applicant’s Request

Application Received:  20070515	Characterization Received:  
Narrative Reason:  MISCONDUCT       		Authority:  MARCORSEPMAN 6210.3

Applicant’s Request:	Characterization change to:  
			Narrative Reason change to: 
Applicant’s Issues:	1.  Discharge inequitable due to diagnosed medical condition.
			2.  Treated unfairly by command.

Decision

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  MISCONDUCT.

Date:  20071115                         Location:  Washington D.C.	 Representation:  

Discussion

Issue 1 (Equity).  The Board 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.  There is credible evidence in the record that the Applicant committed misconduct.  The Applicant does not deny this misconduct.  However, the NDRB concluded that the medical evidence of record is supportive of the Applicant’s claim that he was suffering from diagnosed PTSD.  The NDRB considered the diagnosed PTSD as a mitigating factor associated with the Applicant’s in service outstanding conduct and the subsequent period of misconduct.  The NDRB found that there was an inequity in the Applicant’s discharge action and as a result determined that an inequity in the characterization did occur.   

Issue 2 (Equity).  The Applicant implies that he was treated unfairly by his unit.  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 the command unfairly singled him out for discipline or did not support him.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.  

In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Medical and Service Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found that  

Summary of Service

Prior Service:
Inactive: USMCR (DEP)  19980709 - 19990705  	Active:  19990706 - 20020930
Period of Service Under Review:
Date of Enlistment:  20021001	Years Contracted:  4; Extension:  	Date of Discharge:  20060331
Length of Service:  03 Yrs  06 Mths  00  Dys	Lost Time:  Days UA: 5  Days Confined:  
Education Level:  	Age at Enlistment:  21	AFQT:  71	MOS:  2841  Highest Rank:  
Proficiency/Conduct marks (# of occasions):	 4.1 / 3.6  	Fitness reports:   
Awards and Decorations (per DD 214):  NMCCM, AAM, GCM, SSDR x 2, GWOTSM, GWOTEM, AFGHANISTAN CAMPAIGN MEDAL, NDSM, RIFLE EXPERT BADGE. 

Medical/Service Record Entries Related to Characterization of Service or Basis for Discharge

20050505:	Medical Record:  Regimental Aid Station.  Reason for visit:  Chest discomfort about 10 times since return from Iraq. 

20050511:	Medical Record:  Regimental Aid Station.  Reason for visit:  Anxiety.  Given valium for anxiety.

20050715:	Medical Record:  Regimental Aid Station.  Reason for visit:  Anxiety attack.  Has had a history of anxiety attacks since return from Iraq.  Med include Zoloft and Inderal.  PTSD and alcohol dependence and recent suicidal gesture.  Ambien for sleep disorder and Zoloft. 

20050706:	MARCORSEPMAN 6105 counseling for violations of UCMJ Articles(s) 86, 3 days; 91, insubordination to an NCO; 92, disobeying a lawful order; 134, drunk and disorderly.11+

20050715:	Medical Record:  Regimental Aid Station.  Reason for visit:  PTSD and alcohol dependence and recent suicidal gesture.  Ambien for sleep disorder and Zoloft. 

20050725:	MARCORSEPMAN 6105 counseling for being drunk on duty while awaiting NJP.  Discharge warning issued.  

20050726:	NJP -- Viol UCMJ Article(s) 86, 3 days; 86, 2 days, 91, 92.
	Awarded - FOP ($978) for (2 months); RIR (E-4); Restr for (45 days); Extra duties (45 days).

20050812:	Completed 2 weeks of alcohol education by Camp Pendleton CSACC.

20050912:	MARCORSEPMAN 6105 counseling for drunk and disorderly conduct.  Discharge warning issued.  

20050913:	Screened by Substance Abuse Counselor.  Alcohol dependence and has been seen by CAPT Nash and diagnosed with PTSD.  

20050913:	NJP -- Viol UCMJ Article 134, disorderly conduct and drunkenness, BAC .275.
	Awarded - RIR (E-2) suspended for 6 months; Restr for (60 days).

20051018:	Medical Record Naval Hospital Camp Pendleton:  Reason for visit:  Summary of care from 20050919 – 20051018. 
	Diagnosis:  PTSD and alcohol dependence.  Continued to use alcohol despite physical and psychological problems as evidenced by blackouts, scrapes, and coping with PTSD. 
	Recommendation:  return to duty and be placed in a formal one year recovery program.

20060110:	MARCORSEPMAN 6105 counseling for established pattern of misconduct.  Being recommended for administrative discharge.   

20060119:	NJP -- Viol UCMJ Article(s) 86, failure to go due to being intoxicated and 92, Failure to obey order/regulation..
	Awarded - FOP ($715) for (2 months); RIR (E-2); Restr for (45 days); Extra duties (45 days).

20060112:	Medical Record:  Mental Health Clinic, Camp Pendleton follow up visit. 
	Diagnosis:         
	Recommendation:  

20060130:	Medical Record:  Reason for visit:  Discharge physical. 
	Diagnosis:  Anxiety disorder, alcohol dependence; symptoms since May 2005. 
	Recommendation:  Lexapro and mental heath treatment 

Discharge Process

Date Notified:	20060213
Basis for Discharge:	 DUE TO 
	 DUE TO ALCOHOL REHAB FAILURE
Least Favorable Characterization:	
Commanding Officer’s Intended Recommendation:	

Date Applicant Responded to Notification:		20060213
Rights Elected at Notification:
	Consult with Counsel			
	Obtain Copies of Documents		
	Submit Statement(s) (date)			  (UNDATED)
	Administrative Board			

Commanding Officer Recommendation (date):	 (20060217)
SJA review (date):	 (20060324)
Separation Authority (date):	COMMANDING GENERAL, 1ST AMRINE DIVISION (20060329)
              Basis for discharge directed:	 DUE TO 
              Characterization directed:	
Date Applicant Discharged:	     

Types of Documents Submitted by Applicant and Considered By Board

Related to Military Service:	Service and/or Medical Record:  		Other Records:  

Related to Post-Service Period:  	
	Employment:  			Finances:  			Education: 		
	Health/Medical Records:  		Substance Abuse:			Criminal Records:  	
	Family/Personal Status: 		Community Service:  		References:  		
	
Additional Statements From Applicant:  	From Representative:    
Other Documentation (Describe) 

Pertinent Regulation/Law

A.  Paragraph 6210, MISCONDUCT, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 01 Sep 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.

C.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article(s) 91 and 92.

ADDENDUM:  Information for the Applicant

Complaint Procedures:  If you believe that 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:  Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years from the 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.  If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

Service Benefits:  The Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board.  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 Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’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 Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.  Additionally, the Board 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 subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended.  The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings.  If the action includes either a punitive or administrative discharge for misconduct, 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 “PTSD.”  Only the Board for Correction of Naval Records can grant this type of narrative reason change.  

Automatic Upgrades - There is no law or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving Naval service.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge 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.  Examples of documentation that may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  

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 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.  

Board Membership:  The names and votes of the members of the 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