ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20130307
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)	20080206 - 20080331  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  20080401	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20100308	Highest Rank:  
Length of Service:    Year(s)    Month(s)  08  Day(s)
Education Level:  	AFQT:  48
MOS:  7051
Proficiency/Conduct Marks (# of occasions):   / 	Fitness Reports:  

Awards and Decorations (per DD 214):	Rifle    CoA LoA

Periods of UA/CONF:  

NJP:  
- 20090107:	Article  (Failure to obey order or regulation, 2 specifications)
	Specification 1: Consumption of alcoholic beverages under the legal age of 21
	Specification 2: Being outside the established curfew area for student personnel
	Awarded:    Suspended:  

- 20090904:	Article  (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer)
	Article  (Failure to obey order or regulation by wrongfully consuming alcohol while under the legal drinking age)
	Awarded:    Suspended:  

- 20091113:	Article 112 (Drunk on duty)
	Awarded:     Suspended:  

- 20100107:	Article  (Failure to obey order or regulation by violating a direct order from the Commanding Officer not to break liberty restriction)
	Awarded:    Suspended:  

SCM:  	SPCM:  	CC:  

Retention Warning Counseling:  

- 20081203:	For misconduct, specifically, underage drinking.

- 20090107:	For misconduct, specifically, underage drinking and curfew violation.

- 20100106:	For failure to obey order or regulation, specifically, you violated your liberty restriction.

Administrative Corrections to the Applicant’s DD 214

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

	  “PVT”
	  “E-1”

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.	The Applicant’s mother contends his in-service mental health and other medical conditions caused his behavior issues that ultimately led to his discharge.
2.	The Applicant’s mother contends he was denied due process.

Decision

Date:  20131204		Location: Washington D.C.	 Representation: 

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

Discussion

The Applicant’s mother is requesting, posthumously, to upgrade her son’s characterization of service at discharge.  Although requests by families to upgrade the characterization of a deceased service member are infrequent, they are not unique.  The NDRB reviews these cases in an objective manner as if the Applicant was still living, however, the Board also takes into consideration that certain documentary or testimonial evidence may not be available or reasonable to obtain.

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 Board did complete 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 counseling warnings and   for  of the Uniform Code of Military Justice (UCMJ): Article 91 (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer, 1 specification), Article 92 (Failure to obey order or regulation, 4 specifications), and Article 112 (Drunk on duty, 1 specification).  Based on the offenses committed by the Applicant,  command administratively processed  for separation.  When notified of administrative separation processing using the  procedure, the Applicant exercised  rights to consult with a qualified counsel, submit a written statement, and request an administrative board.

:  (Decisional) ()  .  The Applicant’s mother contends his in-service mental health and other medical conditions caused his behavior issues that ultimately led to his discharge.  The Applicant’s mother also contends inadequate leadership and a poor command climate were mitigating factors in his misconduct.  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.  There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention the command provided inadequate leadership and had a poor command climate.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.

During the Applicant’s 1 year and 11 months of service, he received  retention counseling warnings and was found guilty at  NJPs of violating UCMJ Article 91 (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer, 1 specification), Article 92 (Failure to obey order or regulation, 4 specifications), and Article 112 (Drunk on duty, 1 specification).  Additionally the record of evidence shows the Applicant pled guilty to the 23 November 2009 civilian charges of speeding (104/55) and driving while impaired at the Marine Corps Air Station Cherry Point Traffic Court.  Violations of UCMJ Articles 91, 92, and 112 are considered serious offenses for which a punitive discharge (i.e., Bad Conduct) is authorized.  His command, however, did not proceed to a Special Court-Martial but opted for a lenient administrative discharge.  With his frequent and serious misconduct, the Applicant met the requirements for administrative separation for Misconduct (Serious Offense), Misconduct (Pattern of Misconduct), and Alcohol Rehabilitation Failure.

When reviewing a discharge, the NDRB does consider the extent to which a medical problem might affect an Applicant’s performance and ability to conform to the military’s standards of conduct and discipline.  However, the NDRB does not consider the circumstances surrounding the Applicant’s stated condition or diagnosis to be of sufficient nature to excuse the Applicant’s misconduct.  Per regulations, the initiation and submission of medical boards are at the discretion of the individual physician.  There is no indication in the evidence of record or in the documentation submitted by the Applicant’s mother that the Applicant was recommended for or processed for a medical board by proper authority.  Further, the evidence of record does not indicate that proper authority erred by not initiating a medical board for the Applicant.  While there was also a recommendation for separation for Alcohol Rehabilitation Failure, the Applicant had significant misconduct and was properly processed for administrative separation for both his misconduct and his alcohol treatment failure.  Both the Applicant’s record of service and material provided to the NDRB indicate he had significant issues with substance abuse throughout his life.  This includes pre-service, in-service, and post-service periods.  The record of evidence reflects his in-service substance abuse continued unabated despite multiple attempts at treatment by his command.  Alcohol consumption and substance abuse is never a rationale or an acceptable excuse for inappropriate conduct, misconduct, or poor judgment.  Additionally post-service treatment records indicated mental health providers experienced significant diagnostic difficulty due to the Applicant’s repeated substance abuse.  Material made available from the Applicant’s mother concerning his pre-service period indicates significant substance abuse and criminal misconduct including dealing illegal drugs that, if revealed while in service, could have resulted in a discharge for Fraudulent Entry.

Finally, the NDRB is not bound by U.S. Department of Veterans Affairs (VA) decisions, nor do VA decisions have any bearing on the decisions of the NDRB.  Decisions reached by VA to determine if former servicemembers rate certain VA benefits do not affect previous discharge decisions made by the Marine Corps.  The criteria used by the VA in determining whether a former servicemember is eligible for benefits are different than that used by the Marine Corps when determining a member’s discharge characterization.  Even though he was diagnosed by the VA with schizophrenia and panic disorder, there is nothing to indicate that he was not responsible for his actions or should not be held accountable for his misconduct.  The NDRB determined the Applicant’s conduct, which forms the primary basis for determining the character of his service, reflected a significant departure from the conduct expected of a servicemember.  The evidence of record and supplemental material provided by the Applicant’s mother shows the Applicant’s chain of command was lenient in charging and administering punishment for his misconduct and the awarded characterization of service was warranted, proper, and equitable.  Relief denied.

Issue 2:  (Decisional) (Propriety/Equity)  RELIEF NOT WARRANTED.  The Applicant’s mother contends he was denied due process.  A servicemember may be processed for separation for the commission of a serious military or civilian offense when the offense or a closely related offense is a violation of the UCMJ and warrants a punitive discharge in accordance with the Manual for Courts-Martial.  There is no requirement for adjudication by judicial or non-judicial proceedings, but the offense must be substantiated by a preponderance of the evidence.  Because his discharge processing was administrative in nature, as opposed to legal proceedings such as a Special Court-Martial, his command only needed a preponderance of evidence that he committed misconduct.  The Applicant’s November 2009 arrest provided the preponderance of evidence required to administratively separate him for misconduct.  There is no evidence in the Applicant’s record of service or in the substantial amount of evidence provided by the Applicant that shows the civil charges related to his 23 November 2009 misconduct were dismissed.  However, having charges dismissed after discharge has no bearing on the fact that at the time of his separation, enough evidence existed to support and warrant his administrative discharge.  Even discounting the November 2009 arrest, the Applicant met the requirements for administrative discharge processing with his previous misconduct.  The Applicant’s command acted accordingly with full knowledge of this evidence and was within established guidelines and policy in doing so.  The NDRB determined his command did not purposely hold his administrative separation board before his civilian court date, and the Applicant received full due process during the administrative proceedings.  Relief denied.

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   and the narrative reason for separation shall remain .  The Applicant’s representative remains eligible for a personal appearance hearing for a period of fifteen years from the date of  discharge.  The Applicant’s representative is directed to the Addendum for additional information.

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), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 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