ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20091229
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)	20030902 - 20030921  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  20030922	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20060714	Highest Rank:  
Length of Service:    Year(s)    Month(s)  23  Day(s)
Education Level:  	AFQT:  50
MOS:  3531
Proficiency/Conduct Marks (# of occasions):   () /  ()	Fitness Reports:  

Awards and Decorations (per DD 214):	Rifle      

Periods of UA/CONF:  

NJP:  

- 20050712:	Article  (Failure to obey BN CO order, drinking while on restriction), 20050704
	Article 134 (Drunk and disorderly), 20050704
	Awarded:  E-1   (45 days)   Suspended:  

SCM:  

           - 20050616:	Article 121 (Larceny of Government property, NVGs, valued at $3578.00), o/o 20041209
		Sentence:  RESTR(60 days)

- 20060607:	[Pretrial Agreement for SCM in lieu of SPCM]
	Article 81 (Conspiracy to commit offense)
	Article  (False official statement), 2 specifications
	Article 134 (General Article)
	Sentence: RIR E-1 CONF (30 days) 

SPCM:  

CC:  

Retention Warning Counseling:  

- 20050206:   For violation of Article 108 in that on or about 041207 you lost a set of SL-3 complete NVGs valued at $3976.16 and field gear issued him in the amount of $177.94, and on or about 041212 stole another set of NVGs valued at $3976.16, from a location yet determined, in an attempt to pass them off as the set you previously lost.  Also counseled for violation of Article 107, in that on or about 041228 you further perpetuated your dishonesty by stating to GySgt McKay you believed the NVGs previously stated as being lost had been left at your billet.  Upon your return, you had a set of NVGs less SL-3 claiming these were indeed the ones you claimed as being lost.  It was later determined by your own admission, the NVGs had been stolen by you.  Numerous on-the-spot counselings have been conducted every time your conduct and proficiency have warranted it.  You have established a habitual routine of immaturity, selfishness, irresponsibility, and dishonesty.  You are advised the Company Commander is referring this matter to the C.G., 2d MarDiv.

- 20050601:   For speeding on Stone ST ADJ to the Base Stables.  You were charged with speeding for 38 mph in a 25 
	mph zone.  Assistance is available from the Remedial Driving School, Squad Leader, Platoon Sergeant, SNCOs, and Platoon Commander.

- 20050713:  For failure to obey the BN CO order in regards to drinking while on restriction which led to your NJP
	on 12 Jul.

- 20051229:  For failure to follow barracks rules and regulations.  During a weekend visit to the barracks by the company 1stSgt, your assigned barracks room was found unsecured, with the hatch open, and you were not in the immediate area.  Additionally, observed inside your room was a bottle of hard liquor, clearly a violation of the orders governing good order and discipline within the barracks.  Finally, during an unannounced inspection of the barracks on the following Monday, the cleanliness of your room was found to be unsatisfactory and unacceptable.

Administrative Corrections to the Applicant’s DD 214

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

	  “MARCORSEPMAN 6210.3”

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.	Applicant seeks upgrade to obtain VA medical benefits.
2.	Applicant contends his post-separation PTSD diagnosis warrants a discharge review and consideration for upgrade.

Decision

Date:  20110210		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 Applicant identified one decisional issue for the Board’s consideration.  The Board completed 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 retention counseling warnings,   for  of the Uniform Code of Military Justice (UCMJ): Article 92 (Failure to obey order, drinking while under BN CO restriction, 4 Jul 2005) and Article 134 (Drunk and disorderly on 4 Jul 2005).  The record also contained   for  of the UCMJ: Article 81 (Conspiracy to commit an offense, relating to stolen NVG incident), Article 107 (False official statement, 2 specifications, relating to stolen NVG incident), Article 121 (Larceny of Government property, NVGs valued at $3578.00, o/o 9 Dec 2004), and Article 134 (General Article, related to stolen NVG incident, specifics NFIR).  The Applicant also had enlistment waivers for pre-service law violations to include: a serious offense waiver (USMC Recruiting Station), marijuana use (USMC Recruiting Station), and positive drug and/or alcohol test (CG USMC Recruiting) results prior to entering the Marine Corps.  Based on the offenses committed by the Applicant,  command administratively processed  for separation.  When notified of administrative separation processing using the  procedure on 12 Jun 2006, the Applicant waived  rights to consult with a qualified counsel, submit a written statement, and request an administrative separation board.

The Applicant provided documentation that included a Department of Veterans Affairs Decision Letter, dated Oct 2009, in which it stated the Applicant was determined not to be eligible for VA benefits.  Though not submitted by the Applicant, documentation could have included: a ; letter(s) of recommendation from his employer(s); ; ; evidence of a alcohol rehabilitation or an alcohol-free life style; evidence of financial stability; certification of non-involvement with civil authorities; college or vocational school transcripts; documentation of community or church service; and marriage or child birth certificates (as applicable).  The NDRB considers post-service conduct in order to determine if the misconduct committed during active duty was indicative of the Applicant's character or an aberration.  However, there is no law or regulation that 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.

:  (Nondecisional) The Applicant seeks an upgrade to obtain VA medical benefits.  The U.S. Department of Veterans Affairs 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.

:  (Decisional) ()  .  The Applicant contends his post-separation PTSD diagnosis warrants a discharge review and consideration for upgrade.  The Board conducted an exhaustive examination of the Applicant’s service records to determine whether PTSD-related issues may have affected the Applicant’s decision making and judgment to the extent it may have been a causal or mitigating factor in the series of misconduct that led to his discharge.  The Applicant’s record reflects the Applicant’s misconduct related to the larceny of night vision goggles in order to replace a set that he had previously reported as missing.  Furthermore, the record reflects a series of false official statements related to the larceny that further aggravated the circumstances.  Additionally, the record also contains 6105 retention warnings for speeding on base, breaking BN Commanding Officer’s restriction, and failure to comply with barracks orders and regulations related to room security, cleanliness, and possession of hard liquor.  In the Battalion Commander’s comments portion of the Applicant’s administrative separation package, he states that the Applicant “…has been involved in multiple incidents involving violations of the UCMJ.  He has been given opportunities to correct his deficiencies and continues to fail.  His most recent Summary Court-Martial, to which he was given a pretrial agreement in lieu of Special Court-Martial, highlights his lack of character, integrity, and maturity to be a Marine.  I see no redeeming value in retaining the Applicant.  I am recommending that he be discharged with an Other Than Honorable Discharge for Misconduct (Pattern of Misconduct).”  In addition to the Summary Court-Martial convictions (2), Battalion Commander’s NJP, and 6105 Retention Warnings (4), the Applicant’s in-service proficiency and conduct evaluation averages, 3.6 and 3.5, respectively, are considered well below average and do not qualify for an Honorable characterization of service upon discharge.

On the Applicant’s separation physical exam, dated 13 Jul 2006, the doctor noted that the Applicant had been diagnosed with Anti-Social Personality Disorder, bilateral hearing loss, and that he abused alcohol.  The physician did not find any evidence of, nor did he annotate, significant physical or mental issues necessitating referral for follow-up evaluation or treatment, and he subsequently found the Applicant fit for separation from the Marine Corps.  Additionally, though the Applicant claims that he was diagnosed, post-service, with PTSD, he provided no documentation to support this contention.  After careful review and consideration of all the available evidence and the facts and circumstances surrounding the Applicant’s discharge, the Board found no evidence to support’s the Applicant’s claim and determined this issue did not provide a basis for which relief could be granted.

The Applicant claims that he was awarded a Good Conduct Medal.  This is incorrect.  The notation in Block 18 of his DD Form 14 indicates that the 3-year counter to be eligible for a Good Conduct Medal starts on 7 June 2006, which corresponds with the date of his last misconduct.  To be eligible for a Good Conduct Medal, a servicemember must serve misconduct-free for three years.  The Applicant served for 2 years, 9 months, 23 days and had multiple instances of misconduct.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service,  record entries and administrative separation process, the Board found   Therefore, the awarded characterization of service shall   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, specifically the paragraphs titled Additional Reviews, Automatic Upgrades, and Post-Service Conduct.

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 Disabled 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), 2 Navy Annex, Washington, DC 20370-5100 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:  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 BCNR can make changes to reenlistment codes.  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