ex-, USMC 

Current Discharge and Applicant’s Request

Application Received:  20110711
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:	NONE		Active:	

Period of Service Under Review:
Date of Current Enlistment:  20060516	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20100507	Highest Rank:  
Length of Service:    Year(s)    Month(s)  08  Day(s)
Education Level:  	AFQT:  43
MOS:  3381
Proficiency/Conduct Marks (# of occasions):  / 	Fitness Reports:  

Awards and Decorations (per DD 214):	 (w/1 Campaign Star),  (2), , 

Periods of Confinement: 20080430 - 20080711 (73 days - Pre Trial Confinement)
 
NJP:  

- 20061109:	Article  (Absent without leave - absented himself from unit, without authority, and remained so absent -  0300, 20061104 until 1900, 20061105 (2 days))
	Article 92 (Failure to obey order or regulation, 2 specifications)
	   Specification 1: Fail to sign out in the Liberty Log Book at the OOD hut
	   Specification 2: Fail to return from liberty prior to 0200, 20061104
	Awarded:     Suspended:   

- Undated:	Article 86 (Absent without leave - Failure to go to appointed place of duty, to wit: rifle range detail on 20070717)  [details unavailable - extracted from SRB Pg 11 entry counseling dated 20070917]	

- 20080723:	Article 95 (Resistance, breach of arrest, and escape) 
	Article  (Assault on an NCO with a dagger)
	Article 134 (Possession of two concealed switchblade knives) 
	Awarded:    Suspended:  

- 20091117:	Article  (Absent without leave - absented himself from unit, without authority, and remained so absent from 20091015-20091112, 29 days)
	Awarded:     Suspended:  

- 20100223:	Article  (Absent without leave - Unauthorized absence with intent to avoid field exercise deployment on 20100116, returned on 20100117)
	Article  (Missing movement through design on 20100116)
	Awarded:     Suspended:  

- 20100322:	Article 121 (Larceny, stole eight (8) Arrive Alive cards out of the Headquarters and Service Company office)
	Awarded:  RESTR EPD Suspended:  

SCM:  	SPCM:  	CC:  

Retention Warning Counseling:  

- 20070917:	For Company Level NJP for violation of Article 86, absence without leave on 20070717 from the rifle range.

- Undated:	For Battalion Level NJP for violation of Articles 95, 128, 134, Assault on a Non-Commissioned Officer, fleeing apprehension, and possession of two concealed weapons.  Specifically on 20080426, SNM assaulted an NCO with a dagger, during an altercation at the barracks.     

- 20090512:	For lack of professional judgment, maturity, and inability to obey orders and regulations.  SNM has been counseled on Article 92, 91, and 86 and continues to disobey his SNCO.  

- 20091117:	For Battalion Level NJP for violation of Article 86, absence without leave on or about 20091015 and returned on or about 20091112.

- 20100225:	For violation of Article 86, absent without leave, in that you were not at your appointed place of duty on or about 20100116, and violation of Article 87, missing movement.

- 20100323:	For wrongfully appropriating 8 Arrive Alive Cards out of the Headquarters and Service company office and use them without proper authority.

Administrative Corrections to the Applicant’s DD 214

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

	  “(29) 20091015-20091112, (73) 20080430-20080711”
	
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.

C.  U.S. Code, Title 10, Section 1553 (d) (1) and (d) (2).

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

Applicant’s Issues

Nondecisional issues: The Applicant seeks an upgrade in the characterization of his service at discharge in order to facilitate access to Department of Veterans Affairs (VA) mental health benefits.

Decisional issues: The Applicant contends his characterization of service at discharge was inequitable; his misconduct was an isolated incident in what was an otherwise outstanding military career.  The Applicant further contends that his misconduct of record was the result of stress from depression and anxiety related to Post Traumatic Stress Disorder, which warrants consideration as extenuating and mitigating factors to his discharge and the characterization of service he received.

Decision

Date:  20120105	           	Location: Washington D.C.	 Representation: 

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

Discussion

In accordance with U.S. Code, Title 10, Section 1553 (d) (1), the board included a member who is a physician, clinical psychologist, or psychiatrist.  In accordance with section 1553 (d) (2), the service secretary expedited a final decision and accorded the case sufficient priority to achieve an expedited resolution.  

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 NDRB 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 two decisional issues to the NDRB - equity related to the characterization of discharge.  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 28 on a four-year Open Contract commitment.  He entered active duty service with waivers to enlistment conditions or standards due to a pre-service conviction for Driving under the Influence of Alcohol (DUI) as a minor and a serious offense law violation, adjudicated.  The Applicant’s record of military service further documents that he is a combat veteran, having deployed in support of combat operations in the Al-Anbar province of Iraq in support of Operation IRAQI FREEDOM (OIF) from September 2007 to April 2008.        

The Applicant’s record of service documents six (6) retention-counseling warnings during his enlistment period.  Moreover, his record of service during his enlistment also includes six (6) nonjudicial punishments for violations of the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave, 4 specifications), Article 87 (Missing movement), Article 92 (Failure to obey order or regulation, 2 specifications), Article 95 (Fleeing apprehension), Article 121 (Larceny), Article 128 (Assault), and Article 134 (General Article - possession of concealed weapon (knives, switchblade)).  Based on the established pattern of misconduct and the individual offenses committed by the Applicant, his command recommended that he be separated administratively from the service.  The NDRB presumed regularity in governmental affairs in the absence of a copy of the Applicant’s discharge proceedings in the official service records.  The NDRB was unable to verify the Applicant’s acknowledgment of rights as afforded by the Marine Corps Separation and Retirement Manual (MARCORSEPMAN); however, based on the separation code on the DD Form 214, the Applicant waived his right to an administrative hearing board.

(Non-decisional Issue)  The Applicant seeks an upgrade to his discharge characterization of service in order to achieve eligibility for Department of Veterans Affairs (VA) medical benefits and counseling.  There is no requirement, or law, that grants re-characterization solely on the issue of facilitating access to VA benefits.  Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing educational opportunities or employment opportunities.  Regulations limit the NDRB’s review solely to a determination of the propriety and the equity of a discharge.  As such, this issue does not serve to provide a foundation upon which the NDRB can grant relief.
 
The Applicant is directed to the Addendum, specifically, the paragraph regarding the U.S. Department of Veterans Affairs, who determine eligibility for post-service benefits, not the NDRB.  The VA conducts its own determination of eligibility based on service records and input from an applicant upon their request.  The Applicant should refer to the Veterans Administration website (http://www1.va.gov/opa/Is1/1.asp) for additional assistance regarding a compensation and pension exam for determination of eligibility.  The Applicant should be aware that the VA has announced special VA enrollment access for PTSD and mental health treatment to combat veterans discharged under other than dishonorable conditions.  Effective Jan. 28, 2008, combat veterans discharged from active duty on or after Jan. 28, 2003, are eligible for combat veteran enhanced eligibility and enrollment placement into Priority Group 6 (unless eligible for higher enrollment Priority Group placement) for 5 years post-discharge.  Additionally, the VA determines the eligibility for enrollment in its programs independent of the Applicant’s characterization of service as determined by the Marine Corps.  The Applicant, as a combat veteran, is encouraged to contact his local VA affairs representative for more information.  Alternately, he may call 1-877-222-8387 or visit the following website for more information:  http://www4.va.gov/healtheligibility/Library/pubs/CombatVet/CombatVet.pdf.

(Decisional Issues) (Propriety/) .  The Applicant contends his characterization of service at discharge was inequitable in that his misconduct was an isolated incident in what was an otherwise outstanding military career.  The Applicant further contends that his misconduct of record was the result of stress from depression and anxiety related to PTSD.

Propriety - The NDRB completed a thorough review of the Applicant’s issues and the discharge process and determined that the discharge met the pertinent standard of propriety in accordance with paragraph 6210.3 of the MARCORSEPMAN for Misconduct (Pattern of Misconduct).  The Applicant’s record reflects misconduct (NJPs dated Nov 2006, Jul 2007, Jul 2008, Nov 2009, Feb 2010, and Mar 2010) that violated multiple related retention-counseling warnings.  These actions established a pattern of misconduct that warranted consideration for administrative separation.  The Separation Authority reviewed the evidence of record and the recommendations of the chain of command before determining that a preponderance of the evidence satisfied the requirements as outlined in the applicable regulation (paragraph 6210.3 of the MARCORSEPMAN); accordingly, he directed the Applicant be discharged.  The NDRB determined that the evidence of record did establish the basis for discharge and that the actions were proper.  Accordingly, relief based on propriety is not warranted.

Decisional Issue 1 - (Equity) The Applicant contends his misconduct was an isolated incident in what was an otherwise outstanding military career, to include combat service to his nation.  Whenever a Marine is involved in misconduct, as described in paragraphs 6210 of the MARCORSEPMAN, commanders shall process the Marine for separation unless rehabilitation and retention are warranted and the characterization of service normally shall be Under Other Than Honorable Conditions; however, characterization as General (Under Honorable Conditions) may be warranted in some circumstances.  The Applicant’s enlistment included six non-judicial punishments for misconduct.  These violations of the UCMJ, coupled with his violation of the six retention-counseling warnings received, warranted the commander’s decision to seek discharge vice continued rehabilitation.  Moreover, certain serious offenses warrant separation from the service to maintain the good order and discipline of the service.  Violation of Articles 86 (with intent to avoid field exercises), 87, 92, 95, 121, and 128 are such offenses; violation of these articles usually results in an unfavorable characterization of discharge or, at a maximum, a punitive discharge and possible confinement if adjudicated and awarded as part of a sentence by a special or general court-martial.  The command did not pursue a punitive discharge but opted instead for the more lenient nonjudicial punishments and administrative discharge.  Each of these offenses, by themselves, warranted discharge due to Misconduct - Commission of a Serious Offense.  The NDRB determined that the Applicant’s misconduct began while in his Military Occupational Specialty (MOS) school, continued throughout his service, and was not an isolated incident.

Characterization of service is determined by the quality of the member’s total performance of duty and conduct during the current enlistment, including the reason for separation.  Other considerations shall be given to the member’s length of service, grade, aptitude, and physical and mental condition, and combat service.  An Honorable characterization of service is warranted when the quality of a member’s service generally meets the standard of acceptable conduct and performance for Naval personnel, or is otherwise so meritorious that any other characterization of service would be clearly inappropriate.  However, an Under Other Than Honorable Conditions discharge is warranted when a member engages in conduct involving one or more acts or omissions that constitute a significant departure from the conduct expected of members of the Naval Service.  Based on the Applicant’s record of service, the NDRB determined the Applicant engaged in conduct involving one or more acts or omissions that constituted a significant departure from the conduct expected of members of the Naval Service, and the awarded characterization of service, as issued, was warranted.  Accordingly, relief as requested is denied.

Decisional Issue 2 - (Equity) The Applicant contends that his misconduct of record was the result of stress from depression and anxiety related to PTSD.  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.  The NDRB found no medical diagnosis in the record to support the Applicant’s claim, nor did the Applicant produce any medical diagnosis by competent medical authority to support his claim.  Post-service, the Applicant received psychiatric evaluation and counseling, which diagnosed the Applicant as suffering from a Psychotic Disorder, Not Otherwise Specified; however, this was not linked to his period of service, nor any traumatic combat experiences and did not meet the clinical requirement for a determination of PTSD.  While the Applicant may feel that PTSD symptoms were the underlying cause of his misconduct, the record clearly reflects willful misconduct, beginning in his MOS school and continuing regularly throughout his enlistment - both before and after his combat deployment.  The misconduct demonstrated he was unfit for further service.  Relief denied.

The NDRB determined that the Applicant’s contention of PTSD symptoms was not a mitigating factor associated with the misconduct of record during the enlistment period.  Further, the NDRB discerned no impropriety in the discharge action that would warrant a change nor did it determine any inequity in the characterization of the Applicant’s service at discharge.  Based on the Applicant’s documentation and his official service records, coupled with the facts and circumstances unique to this case, the NDRB determined that relief was not warranted.  The Applicant engaged in serious and chronic misconduct involving one or more acts or omissions that constituted a significant departure from the conduct expected of members of the Naval Service.  As such, the NDRB determined that an upgrade in the Applicant’s characterization of service at discharge is not appropriate and is not warranted.  Furthermore, 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 (Pattern of Misconduct).  

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service, medical and service record entries, police reports, and the discharge process, the NDRB 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 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