ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20080605
Characterization of Service Received:  
Narrative Reason for Discharge:  
Authority for Discharge:  MARCORSEPMAN 

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

Summary of Service

Prior Service:
Inactive:  USMCR (DEP)	20000403 - 20000710  		Active:  	20000711 - 20031002  

Period of Service Under Review:
Date of Enlistment: 20031003	Period of Enlistment:   Years   Months	Date of Discharge:  20070320
Length of Service:    Yrs    Mths  18  Dys	Education Level:  	Age at Enlistment:  	AFQT:  34
MOS: 3531                                  Highest Rank:                               Fitness Reports:        
Proficiency/Conduct Marks (# of occasions):   () /  ()
Awards and Decorations (per DD 214):	Rifle  (5)       (IRAQ)   PUC NUC

Periods of UA/CONF:  

NJPs:	

SCMs:	
20061129: Article  92 (Violate a lawful general order),
                  Article 128 (Assault).
                  Sentence       .
                  CA action (20061207) Sentence is approved and ordered executed.

SPCMs:	

CC:	

6105 Counseling: 

Administrative Corrections to the Applicant’s DD 214

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

	  “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 20000711 TO 20031002”

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 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):  News article

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

Applicant’s Issues

1.  Feels his discharge should have been medical due to Post Traumatic Stress Disorder (PTSD).
2.  Claims he was denied proper medical treatment/information.
3.  Claims he was not given proper legal advice.
4.  Isolated incident. 

Decision

Date:  20080829          	Location: Washington D.C.    	 Representation:  

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  MISCONDUCT (COMMISSION OF A SERIOUS OFFENSE).

Discussion

Issue 1: ()   .  The Applicant claims his misconduct was a result of drinking too much to mask the problems he was having suffering from PTSD.  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.  The Applicant’s record of service was marred by 1 summary court martial for violations of the Uniform Code of Military Justice (UCMJ), Article 92 and Article 128.  Violation of these Articles is considered serious in nature and could have resulted in a punitive discharge and confinement if adjudicated by a special or general court-martial.  The command did not pursue a punitive discharge but instead had a summary court martial and conducted an administrative discharge.

The Applicant returned from his deployment to Iraq in July 2003.  There is no reference to PTSD in his medical treatment record from July 2003 until it’s first mentioned in February 2006.  There are 2 other subsequent military medical reports from May and September 2006 mentioning PTSD.  In the Department of Veteran’s Affairs records he submits, he states he was treated for PTSD in February 2006 and was prescribed the drug, Bupropion, which is a dual purpose medication with one purpose being it can treat mild depression.  In this report, the Applicant denied he abused alcohol and drugs, which contradicts his claim above.  Although PTSD is listed on three of his military medical reports, dated February, May and September 2006 respectively, there are no mental health assessments in his military medical records which say he was treated for PTSD (e.g., attended stress management classes, attended depression classes, attended anger management classes, etc.) while on active duty other than being prescribed Bupropion, or that PTSD was stopping him from performing his daily work duties or functioning in a normal daily routine. 

In his statement submitted to the Board, the Applicant acknowledges upon his return to CONUS after his Iraq deployment, he was not prepared for certain life choices he made.  In 2004, he fought to obtain custody of a child, he did not know he fathered, after the mother died.  In 2005, he married a woman with three children whom he adopted.  In July 2005, he was placed on the Body Composition Program for being 37 lbs overweight.  All these events added stress to his life and by his own admission, he started drinking more.  The Applicant says he was drinking too much and that he was intoxicated the night of the incident with his wife.  The Applicant went to a summary court-martialed in November 2006 for assault on his wife and for having an unregistered firearm on a military installation.  The Applicant plead guilty to these charges.  A review of the record reveals that at no time did he mention PTSD may have caused his violence or was a factor in the misconduct.  Despite his claim his drinking was severe, there is no documentation he was command screened or treated for alcohol abuse while on active duty.   He produces no evidence to support his claim that he was not responsible for his actions and there is no evidence in his medical record relieving him of responsibility for his actions based on PTSD or any other medical reasoning.  The Board determined an upgrade would be inappropriate.  

 Issue 2: (Equity) RELIEF NOT WARRANTED.  The Applicant claims military doctors did not properly explain the possible side effects of the drugs he was taking for his PTSD.  When he discovered the side effects, he became scared and did not take the prescribed drugs which exacerbated his PTSD symptoms and thus his alcohol abuse.  Over the course of his enlistment, the 

Applicant was seen frequently by military doctors for an extensive variety of medical problems.  He was prescribed a number of drugs to address multiple health symptoms to include, but not limited to, Bupropion.  Each drug comes with a printout that 
clearly states the possible side effects.  Additionally, it was noted documentation stating the Applicant’s military doctor discussed potential side effects with him for the Bupropion prescription and he indicated understanding of the side effects.  The documentation shows at least 15 minutes face-to-face time with the doctor with greater than 50% of the visit time spent counseling and coordinating care.  For the edification of the Applicant it is the patient’s responsibility to read these enclosures accompanying prescriptions and bring up any concerns to their health services provider.  

It was also noted the Applicant had been prescribed Citalopram, Temazepam, and Lorazepam from the Veteran’s Healthcare System, issued in 2008, after the Applicant’s discharge. 

Issue 3: (Propriety) RELIEF NOT WARRANTED.  The Applicant claims his did not know what he was signing when he waived his Administrative Separation Legal Rights.  He states he was misled by his lawyer as to the severity of his punishment and that he thought he would be incarcerated “forever”.  The Applicant signed a Pre-Trial Agreement before his Summary Court-Martial for violations of the UCMJ, Articles 92 and 128, punishable by a dishonorable discharge and up to  imprisonment if adjudicated as part of the sentence upon conviction by a special or general court-martial.  In this Pre-Trial Agreement, he acknowledged the limits the Convening Authority could put on his punishment.  Punishment is limited to reduction to E-4, 60 days restriction and forfeitures of two thirds of one month’s pay.  Confinement is not listed as a potential punishment.  Additionally, no where in the Acknowledgement of Rights for Separation notification for Commission of a Serious Offense, which he initialed, is imprisonment listed.  The Board determined an upgrade would be inappropriate and the claim of   improper legal advice was unfounded. 

Issue 4: (Equity) RELIEF NOT WARRANTED.  The Applicant states that he was never in any trouble before and this is an isolated incident.  Additionally, he claims the charge of having an unregistered firearm was dropped.  For the information of the Applicant, despite a service member’s prior record of service certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline.  The Applicant’s record of service is marred by a number of counseling entries.  In 2002, he was denied promotion several times due to lack of leadership and initiative.  In 2004, he was counseled for failing to qualify on the rifle for lack of effort.  In 2005, he was put on the Body Composition Program since he was 37 lbs over the USMC standard for his height.  His Pro/Con marks are not those of a top performer, reflecting an overall 3.0/2.0.  In two fitness reports from 2006, it is noted he “failed a unit run, lacks the judgment, initiative and character expected of a Sergeant of Marines.”  On his Fitness reports he is consistently placed in the bottom 1/2 to 1/3 in peer rankings.  The Summary Court- Martial record dated 29 November 2006 shows the Applicant plead and was found GUILTY, in addition to Article 128, of violation of Article 92, UCMJ having an unregistered firearm.  This evidence of record contradicts the Applicant’s understanding the unregistered firearm charge was dropped; it was not dropped according to the record.  The Board determined an upgrade would be inappropriate based on an insolated incident in light of the evidence from the summary court martial and the violations of the UCMJ involved.  

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.  Paragraph 6210, MISCONDUCT of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), 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.

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, Articles 92, 128.

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 or is referred to a court-martial 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 other medical related reasons.”  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 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 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