ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20100528
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)	20051012 - 20051106  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  20051107	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20080811	Highest Rank:  
Length of Service:    Year(s)    Month(s)  05  Day(s)
Education Level:  	AFQT:  34
MOS:  0311
Proficiency/Conduct Marks (# of occasions):   () /  ()	Fitness Reports:  

Awards and Decorations (per DD 214):	Rifle , ,  (WITH 1 BRONZE STAR), , , 

Periods of UA: 20060828-20060831 (3 days) 
Periods of CONF:  20071004-20071027 (24 days); 20071030-20071122 (24 days)

NJP:  
- 20060826:	Article  (Fail to obey an order or regulation - underage drinking)
	Awarded:   Suspended:  

- 20060901:	Article  (Unauthorized absence for 3 days)
	Awarded:     Suspended:    (Suspension vacated 20061005)

- 20061006:	Article  (Breaking restriction)
	Awarded:    Suspended:  

SCM:  
- 20071004:	Article  (Unauthorized absence; 0600-1400, 03 Oct 2007)
	Sentence:  (24 days served) 

- 20071030:	Article  (Unauthorized absence; 1000-1620, 30 Oct 2007)
	Sentence:   (24 days served)

SPCM:            CC:  

Retention Warning Counseling:  

- 20060826:	For wrongfully drinking underage. 

- 20060901:	For unauthorized absence.

- 20061005:	For breaking restriction.

- 20070701:	Concerning the revisions and additions to the Marine Corps Uniform Regulations, MCO P1020.34G, specifically, subparagraphs 1004.1C(1) and 1004.10(2).  You have acquired a concentrated amount of tattooed area upon your flesh that falls into the revision’s definition of a “Sleeve Tattoo.”  You are advised that being “grandfathered” is a privilege that basically authorizes these documented tattoos - however, any and all future tattoo(s) that you have added to your flesh will then not only bring the new tattoo(s) into question, but ALL your existing tattoos into question as well.  The ultimate questions being - has the recent tattoo(s) violated the UCMJ under Article 92 - and your suitability to remain a Marine.

- 20071114:	For pattern of misconduct.  Specifically you received three nonjudicial punishments and two summary court-martials during your current enlistment.  This does not demonstrate the high standards of leadership, professional competence, and personal behavior required by the Marine Corps.

- UNDATED:	 (On or about 13 Nov 07) For voluntary refusal of my participation of Substance Abuse Rehabilitation Program.

Administrative Corrections to the Applicant’s DD 214

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

	  “MISCONDUCT”

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.	Decisional issues: The Applicant contends that his characterization of service at discharge was inequitable, because he was treated extremely harshly by his chain of command in regards to his Summary Courts-Martial and subsequent punishments awarded and further contends that a pattern of misconduct was not warranted.  Additionally, the Applicant contends that his misconduct was mitigated by an emotionally traumatic event that occurred in Iraq, which affected him significantly.   

Decision

Date:  20110420                   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 to the NDRB.  Additionally, the NDRB completed a thorough review of the circumstances that led to the Applicant’s discharge, and the discharge process, to ensure the discharge met the pertinent standards of equity and propriety.  

The Applicant entered active duty military service at age 18 on a four-year contract with a guarantee for training as an Infantryman.  He entered the service with a requirement for waiver to enlistment conditions or standards due to pre-service drug use (marijuana) and pre-service medical (ADHD).  The Applicant’s record of military service documents that he is a combat veteran, deploying to a designated combat zone, conducting combat operations in the Al-Anbar province of Iraq in support of Operation IRAQI FREEDOM from January to August 2007.  

The Applicant’s record of service contained six retention-counseling warnings and three nonjudicial punishments for violations of the Uniform Code of Military Justice (UCMJ), specifically, violation of Article 92 (Failure to obey order or regulation), violation of Article 86 (Unauthorized absence - 3 days), and violation of Article 134 (Breaking restriction).  Furthermore, the Applicant’s service record reflects two Summary Courts-Martial for violation of Article 86 from 0600-1400 on 03 Oct 2007 and again for absence from 1000-1620 on 30 Oct 2007.  

The Applicant’s service record also reflects treatment and evaluation by the Division Psychiatrist - prior to deployment to Iraq - due to statements of suicidal ideations.  The Applicant was diagnosed with ADHD (attention deficit hyperactivity disorder - existed prior to entry) and an Adjustment Disorder with mixed emotions and conduct.  The Applicant was further recommended for treatment with medication and continued counseling; he was not recommended for separation.      

Based on the continued pattern of misconduct by the Applicant, his command administratively processed him for separation.  When notified of administrative separation processing using the administrative board procedure, the Applicant elected to waive his rights to consult with a qualified legal counsel, to submit a written statement to the separation authority, or to request a hearing before an administrative discharge board.  The Applicant was notified of the basis for separation and advised that the least favorable characterization of service he could receive was Under Other Than Honorable Conditions; he acknowledged his rights and the basis for separation on 03 June 2008.  The command forwarded their recommendation for administrative separation on 04 June 2008.  It was endorsed by the chain of command, reviewed for legal sufficiency by the Staff Judge Advocate, and approved by the Separation Authority on 21 July 2008.   

:  (Decisional) () .  The Applicant contends that his characterization of service at discharge was inequitable, because he was treated extremely harshly by his chain of command in regards to his Summary Courts-Martial and subsequent punishments awarded and further contends that a pattern of misconduct was not warranted.  Additionally, the Applicant contends that his misconduct was mitigated by an emotionally traumatic event that occurred in Iraq, which affected him significantly.   

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 the standards of discipline of the Naval Service.  The NDRB determined the Applicant’s contention that the punishment received from his Summary Courts-Martial was unduly harsh, is without merit.  The Manual for Courts-Martial authorizes a maximum punishment of confinement for up to one month for unauthorized absence that does not exceed 3 days.  By themselves, the punishments adjudicated at the Summary Courts-Martial may appear harsh in respect to the relatively short period of unauthorized absence, however, taken in the context of three prior non-judicial punishments and formal retention counseling warnings, the elevation to Summary Court-Martial and adjudication of the maximum allowable punishment was warranted.

The NDRB completed a thorough review of the Applicant’s issues and the discharge process; the Applicant’s documented record of misconduct, coupled with the retention counseling warnings that were subsequently violated, meets the requirements as established by the Marine Corps Separation and Retirement Manual (MARCORSEPMAN) for administrative separation pursuant to MISCONDUCT (Pattern of Misconduct).  As such, the NDRB determined that the discharge met the pertinent standard of propriety in accordance with the MARCORSEPMAN and a change based on propriety is not warranted.  

The NDRB conducted a thorough review of the Applicant’s combat deployment history, the timing and the circumstances involved in the Applicant’s incidents, coupled with the Applicant’s in-service mental health treatment by appropriately credentialed mental health care providers.  Given the unique circumstances involved in the Applicant’s individual case, the traumatic impact of documented, personal events that occurred in Iraq, and the timing of the discharge in relation to the misconduct of record, the NDRB determined that the discharge, as awarded, was inequitable.  In accordance with the MARCORSEPMAN, a General (Under Honorable Conditions) discharge is warranted when the quality of the member’s service has been honest and faithful, but significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service record.  

Based on the Applicant’s documentation and his official service and medical records, coupled with the facts and circumstances unique to this case, the NDRB determined that relief based on equity was warranted.  The NDRB determined that the Applicant’s service was honest and faithful, but significant aspects of his conduct and performance did outweigh the positive aspects of his service record.  As such, by a vote of 3-2, the NDRB determined that an upgrade in the Applicant’s characterization of service at discharge to General (Under Honorable Conditions) was appropriate and warranted.  However, by a vote of 5-0, the NDRB determined that the narrative reason for separation was proper as issued and accurately reflected the Applicant’s reason for separation; therefore, it shall remain MISCONDUCT.  It should be noted that the narrative reason for separation (Block 28) on the Applicant’s original DD Form 214 was incorrectly stated as “REQUEST FOR DISCHARGE FOR THE GOOD OF THE SERVICE.”  The NDRB will recommend to the Commandant of the Marine Corps that Block 28 be correctly changed to “MISCONDUCT.”     

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  ; however, 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 his discharge.  The Applicant is directed to the Addendum; specifically, the paragraphs titled Additional Reviews 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