ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20130327
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)	20050531 - 20050404  	Active:	 20050405 - 20080821 HON

Period of Service Under Review:
Date of Current Enlistment:  20080822	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20120322	Highest Rank:  
Length of Service:    Year(s)    Month(s)  00  Day(s)
Education Level:  	AFQT:  49
MOS:  1833
Proficiency/Conduct Marks (# of occasions):  /(NFIR)	Fitness Reports:  

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

Periods of CONF:  

NJP:  

- 20111212:	Article  (Absence without leave, 0800 20111203) 
	Article  (Failure to obey order or regulation, by your Commanding Officer on 20111024)  
	Awarded:     Suspended: 

SCM:  	SPCM:  	CC:  

Retention Warning Counseling:  

- 20101202:	For Article 128, Assault  

- 20111024:	For inappropriate relationship with a female not your wife.  Specifically, a picture surfaced on the Social Networking Site Facebook that showed you kissing a female not your wife.  Prior to the surface of this incident, you asked a fellow Marine if it was acceptable to date a high school student over the age of 18 if she was not a Marine Corps applicant or poolee.  On 20110917, you were counseled by the Recruiting Station Sergeant Major that dating a high school student, regardless of age, was unacceptable and that while you are legally married, you would refrain from any unprofessional or familiar relationship with females not your wife.  You will immediately cease all contact with the female you were kissing in the Facebook photograph and ensure all relationships with females not your wife are strictly professional in nature.      

- 20111024:	For violation of Article 86 (Unauthorized absence), which is chargeable under the UCMJ.  You have been verbally counseled on several occasions concerning your tardiness and failure to be at your appointed place of duty.  Additionally, you have been counseled in writing on two separate occasions for unauthorized absence; first written counseling was conducted by the Recruiting Station Sergeant Major dated 20110903 for being absent without leave to your appointed place of duty, which was scheduled physical training on Friday 20110930 at 0700 at which you failed to appear.  At this point, this was your third time being absent without leave.  You were also formerly counseled in writing by Gunnery Sergeant O_ your SNCOIC dated 20110114 for being absent without leave, specifically, it was your appointed place of duty to muster at the Recruiting Substation at 0730 on Friday 14 October.  You texted your SNCOIC that morning at 0734 to inform him that you would be late.  You have provided multiple excuses each time, which have included issues with your car, alarm clock not going off, and traffic.

- 20111208:	For specifically, on seven separate occasions dating back to the month of August 2011, the Castle Rock Colorado Police have responded to complaints concerning various disturbances and noise violations located at your residence.  There are police documents concerning the following complaints: Disturbance on 20110823, Disturbance on 20110903, Noise Complaint on 20110904, Noise Complaint on 20110918, Noise Complaint on 20110922, Disturbance on 20111020, and a Noise Complaint on 20111111.  Furthermore, on 20111203, the police responded to your residence at approximately 0310 that morning due to two 911 calls from nearby neighbors within your apartment complex with concerns of fighting, banging, loud noises, and a possible physical assault.  Based on an objectively reasonable level of concern, the officer entered your apartment by force, kicking the door open in order to gain entry into your residence.  The police reports stated that upon entry, they found nine occupants inside the apartment, three of which were under the age of 21years old and had been consuming alcohol.  According to the Police Report, a female by the name of E_ K_, reported as your girlfriend, was present and has been living with you in the apartment.  You are currently married and E_ K_  is not your wife.  You were ticketed at your residence (which you refused to sign), pending charges of Obstructing the Duties of Public Officials, which is supported by the efforts of the initial response of the officer to compel the lease holder (C_) to open the door to his apartment to allow for a legitimate Emergency Police Investigation, Illegal Sale of Giving of Alcohol to an Underage Person (specifically E_ K_), which is supported by E_ drinking at the residence as well as the other underage people being there and also consuming alcohol, and Prohibited Acts (Noise), which is supported by the statement of the neighbors.  You have been summoned and ordered to appear on 20120111 at 1500 at Castle Rock Municipal Court located in Castle Rock, Colorado.                   

- 20111212:	For RS level NJP for violation of Article 86 (Unauthorized absence), in that, on or about 20111203, without authority, you failed to report at the time prescribed to your appointed place of duty, which was Recruiting Substation Parker, Colorado at 0800.  You also were found guilty of violating Article 92 (Failure to obey an order or regulation), in that you were given a lawful order issued by the Commanding Officer on 20111024, which is documented in a previous 6105, not to have any contact with a previously identified female, who is not your wife.

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 050405 UNTIL 080821”
	
The NDRB will recommend to the Commandant of the Marine Corps, MMSB-13, 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 wants to reenlist in the Reserves or Army National Guard.
2.	The Applicant contends his record of service warrants consideration for an upgrade.
3.	The Applicant contends multiple stress-causing events mitigate his misconduct.
4.	The Applicant contends Post-Traumatic Stress Disorder (PTSD) and Traumatic Brain Injury (TBI) mitigate his misconduct.
Decision

Date:  20140403		Location: Washington D.C.	 Representation: 

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

Discussion
As a result of the Applicant’s claim of PTSD and TBI, in accordance with U.S. Code, Title X, Section 1553 (d)(1), the Naval Discharge Review 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 Applicant’s service record documents completion of a deployment to Iraq from March 2006 to October 2006, conducting combat operations in support of Operation IRAQI FREEDOM.

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 in his current enlistment included  6105 counseling warnings and one nonjudicial punishment (NJP) for  of the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave, failure to be at appointed place of duty) and Article 92 (Failure to obey order or regulation, failure to obey order not to have contact with a specific female, not his wife).  In addition, the Applicant was relieved of his duties as a Canvassing Recruiter on 5 December 2011 due to loss of confidence and a pattern of misconduct.  Based on the offenses committed by the Applicant,  command administratively processed  for separation.  When notified of administrative separation processing using the administrative board procedure, the Applicant waived  rights to consult with a qualified counsel and request an administrative board, but exercised his right to submit a written statement.

:  (Nondecisional)  The Applicant wants to reenlist in the Reserves or Army National Guard.  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 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.

:  (Decisional) ()  .  The Applicant contends his record of service warrants consideration for an upgrade.  The Applicant received an Honorable characterization of service for his first enlistment from April 2005 to August 2008.  Each period of enlistment is an independent obligation and characterization is determined for that specific period of time.  During his second enlistment, he received five retention warnings, was found guilty of violating UCMJ Articles 86 and 92 at an NJP, and was relieved of Canvassing Recruiter duties for loss of confidence and a pattern of misconduct after a local high school banned him from recruiting on school property because of rumors that he was having inappropriate relationships with female students.  Despite being given multiple opportunities to correct his behavior, the Applicant’s continued poor judgment and misconduct led his command to determine that he was no longer fit to serve.  He was then processed for administrative separation for a Pattern of Misconduct.  Based on the record of service in his second enlistment, the NDRB determined he 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 was warranted.  Relief denied.

3:  (Decisional) ()  .  The Applicant contends multiple stress-causing events mitigate his misconduct.  The Applicant contends his command did not allow him time to seek mental health treatment, he was having trouble adjusting after his recent deployment to Japan, he was having financial difficulties and his car was repossessed, he was distraught because his wife had left him for another Marine, he was alone in Colorado, and he felt he was being treated unfairly by his command.  The NDRB recognizes that serving in the military is challenging.  Most service members, however, serve honorably and therefore earn their Honorable or General discharges.  In fairness to those service members, commanders and separation authorities are tasked to ensure that undeserving Marines receive no higher characterization than is due.  There is no evidence in the record, nor did the Applicant provide any documentation, to indicate he attempted to use the numerous services available for service members who undergo personal problems during their enlistments, such as the Navy Chaplain, Family Advocacy Programs, or even his chain of command.  The evidence in the Applicant’s record shows his command counseled him on numerous occasions to avoid further misconduct, and he was under treatment by mental health experts for PTSD.  However, the Applicant willfully disregarded his command’s warnings and continued his misconduct.  The NDRB determined the Applicant’s personal problems were not mitigating factors in his misconduct, and his discharge was warranted, proper, and equitable.  Relief denied.

Issue 4:  (Decisional) ()  .  The Applicant contends PTSD and TBI mitigate his misconduct.  The Applicant’s record shows he was diagnosed with PTSD in March 2007 and experienced TBI-like symptoms after a training accident at Camp Pendleton in early 2007.  The Applicant’s command and Separation Authority were made aware of his PTSD diagnosis and took this into account during the separation process.  Medical evaluation by a military psychologist during separation noted the Applicant’s diagnosis of PTSD could have an impact on his behavior but determined his pattern of misconduct started before the Applicant’s deployment to Iraq in March 2006.  The psychologist stated, “PTSD would not impact members contributing to delinquency of minors nor would impact his relationship with women outside his marriage.”  Though the Applicant may feel that PTSD and TBI mitigate his misconduct, the record reflects willful misconduct that demonstrated he was unfit for further service.  The evidence of record did not show that the Applicant was either not responsible for his conduct or should not be held accountable for his actions.  After careful review, the NDRB found no evidence to support the Applicant’s claim that PTSD and TBI mitigated his misconduct and determined his discharge was proper and equitable.  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 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 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