ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20080220
Characterization of Service Received:  
Narrative Reason for Discharge:  
Authority for Discharge:  MARCORSEPMAN, 6210.5 (DRUG ABUSE)

Applicant’s Request:	Characterization change to:  
			Narrative Reason change to: 

Summary of Service

Prior Service:
Inactive: USMCR (DEP)	20020920 - 20030707  		Active:   
Period of Service Under Review:
Date of Enlistment: 20030708		   Period of enlistment:   Years   Months		Date of Discharge:  20060915
Length of Service:    Yrs    Mths  08  Dys	Education Level:  	Age at Enlistment:  	AFQT:  85
MOS:  0351  	Highest Rank:   			Fitness reports:  
Proficiency/Conduct marks (# of occasions):	 ()/ ()
Awards and Decorations (per DD 214): Rifle ,  , , , , 

NJPs:	
	20060314:  Art , 134 (Drunk and disorderly).  Awarded - .  Susp - .
	20060707:  Art ; ; 112 (Drunk on Duty); 
                                  134 (Wrongful overindulgence in intoxication liquor).  Awarded - , , .  Susp - .

6105 Counseling: 4
	
	20060314:  For Insubordinate Conduct, Drunk on Duty.
	20060604:  For a Pattern of Misconduct
	20060707:  UA, Failure to Obey; Drunk on Duty, Drunk (Incapacitated).
	20060804:  Alcohol Rehab Failure

Types of Documents Submitted

Related to Military Service:	DD 214:  	Service and/or Medical Record:  		Other Records:  

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

DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

1.  Service benefits.
2.  Post service conduct.
3.  Post Traumatic Stress Disorder (PTSD).

Decision

Date:  20080613		Location:  Washington D.C.	 Representation:  

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

Discussion

: ()  .     either  which the Board cannot form the basis of relief for the Applicant, or  the Board does not have the authority to grant the relief for which the Applicant petitioned.  The Applicant is directed to the Addendum, for additional information regarding .

Issue 2:  (Equity) RELIEF NOT WARRANTED.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  However, there is no law or regulation, which provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in the civilian life subsequent to leaving the service.  Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question.  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.  The Applicant provided a personal statement and no documentation as evidence of post-service accomplishments.  The Applicant's efforts need to be more encompassing.  For example, the Applicant could have produced evidence of a verifiable employment record, documentation of community service, evidence of an alcohol free existence, and certification of non-involvement with civil authorities.   The Applicant should be aware even completion of these items does not guarantee an upgrade from an unfavorable discharge.  The Board determined an upgrade is not warranted.

: ()  .    The Applicant contends his problems may be attributed to PTSD.  During Board reviews the government is presumed to conduct its affairs with regularity.  The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue. The NDRB found medical diagnosis in the record to support the Applicant's claim he suffers from PTSD and was being treated for PTSD.  However, the Applicant did not produce any medical diagnosis by competent medical authority to support his claim that his misconduct and alcohol rehabilitation failure was a result of PTSD.   He was terminated on day 29 of a 30 day resident alcohol rehabilitation (AR) program for walking out to play pool, which violated AR policy, therefore considered a failure.  While the Applicant may feel PTSD was the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service.

The NDRB did note administrative error(s) on the original DD Form 214.  Block 26, Separation Code, should read:  “ HKA1”.   Headquarters Marine Corps, Deputy Commandant for Manpower and Reserve Affairs (MMSR-3), Quantico, VA, will be notified, recommending the DD Form 214 be corrected or reissued, as appropriate.

After a thorough review of the available evidence, to include the Applicant’s Summary of Service,  Record, Discharge Process and evidence submitted by the Applicant, the Board found 

Pertinent Regulation/Law

A.  The Marine Corps Separation and Retirement Manual, (MCO P1900.16F, effective 01 Sep 2001 until Present, Paragraph 6210, MISCONDUCT.

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.

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