ex-, USMC

Current Discharge and Applicant’s Request
Application Received:  20080311
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)	19970320 - 19970602  		Active:   19970603 - 20010124

Period of Service Under Review:
Date of Enlistment: 20010125		   Period of Enlistment:   Years  + 23 Months	Date of Discharge:  20070111
Length of Service:  05  Yrs  11  Mths  17  Dys	Education Level:  	Age at Enlistment:  	AFQT:  57
MOS:  7212  	Highest Rank:   			Fitness Reports:  
Proficiency/Conduct Marks (# of occasions):	 3.9/4.2(NFIR).
Awards and Decorations (per DD 214):  Rifle:  x 2, Pistol: ,  x 3, , , , KDSM, ICM, CerCom x 3

NJPs:	
	20040310:  Article 117 (Provoking speeches or gestures),
	                   Article 128 (Assault),
                                 Article 134 (Communicating a threat).
                                 Awarded - RIR (E4), FOP ($945 for 2 months), RESTR (30).  Susp - FOP and RESTR (15) for 6 months.

	20061023: Article 90 (Disobeying a superior commissioned officer)
                                Article 91 (Disrespect toward a non-commissioned officer), 2 specifications,
                                Article 134 (Communicating a threat).
                                Awarded - RIR (E3), FOP ($1009 for 2 months), RESTR (15), EPD (45).  Susp- RIR, FOP, and RESTR
                                or 6 months.

SCMs:	
20060822: Article 134 (Adultery).
                  Sentence - , RESTR (60).

6105 Counseling: 
	20031002:  For disrespect to a SNCO.
	20040419:  For NJP for violations of UCMJ Articles 117, 128, and 134.
	20060822:  For assignment to "High Risk" category of the NCO Mentorship program due to Court Martial conviction.

Types of Documents Submitted
Related to Military Service:	DD 214:  	Service and/or Medical Record:  		Other Records:  

Additional Statements From Applicant:  		From Representation:  		From Member of Congress:  
Other Documentation (Describe)  
	Statement of immediate supervisor forms from:
		1stLt T. dated 15 Sep 06
		1stLt H. dated 20 Sep 06
		GySgt G. dated 19 Sep 06
		SSgt R. dated 20 Sep 06
		SSgt F. dated 21 Sep 06
		1stLt T. dated 01 Oct 06
		GySgt G. dated 12 Oct 06
	Undated email without header information from SgtMaj U.

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.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violations of the UCMJ, Articles 90, 91, 117, 128, and 134.

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

Applicant’s Issues

1.  Medical disabilities led to misconduct.
2.  Impropriety due to command influence.

Decision

Date:  20080619		Location:  Washington D.C.	    Representation: NC Dept of Administration.

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

Discussion

: ()  .  The Applicant contends he was disabled (Post Traumatic Stress Disorder (PTSD), intermittent explosive disorder, and had slipped discs) due to police brutality endured on 31 January 2004, while on active duty and those disabilities led to his misconduct.  In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  The Applicant’s record of service is marred by 2 non-judicial punishments for violations of the Uniform Code of Military Justice, to include provoking speech, assault, communicating a threat, disobeying a commissioned officer, disrespect toward a non-commissioned officer (2 specifications), and 3 retention warning counseling’s.  The Applicant also received a summary court martial for adultery.  All of the above violations are considered serious in nature and warrant a punitive discharge if adjudicated by a special or general court martial.  However, the command opted for a summary court martial instead and the Applicant was discharged for a pattern of misconduct which resulted in an “Under Other Than Honorable Conditions” discharge. 

An extensive review of the Applicants service and medical record was conducted to validate the Applicant’s claim his medical disabilities led to his misconduct.  It should be noted the Applicant’s medical records were approximately 7 inches thick.  The highlights based on the Board’s review as they pertain to this case indicated as early as July 1998, based on a Magnetic Resonance Imaging of the lumbosacral spine, the Applicant had “mild early degenerative changes in L3-4 disc manifested by slight loss of disc space”.  On 3 September 2003, the Applicant was seen by LCDR M. who noted in his medical records the Applicant had attended Anger Management classes, but that anger issues were reoccurring. On 28 August 2005, he was seen by the MACG-28 Group surgeon, Lt Vijay H. for back pain, resulting from an alteration on 27 August 2005 in which he was “dropped on his head.”  During this examination, the Applicant mentioned the alleged January 2004 police assault by the El Paso Police Department.  Lt H. states it is unclear as to what could have exacerbated the disc herniation.  The Board did not find any evidence in the Applicant’s medical or service records to support the Applicant’s claim he endured police brutality and was injured on 30 January 2004 by anyone from the El Paso Police Department; there was no mention of the alleged police assault until his 28 August 2005 visit to the Group surgeon, nineteen months after the incident occurred.  Nor was there any mention in his service record that his command had been contacted by the El Paso Police Department for their involvement with a member of the military, namely the Applicant.  However, there was documentation predating the alleged El Paso police encounter establishing back issues and anger management issues.  

The Applicant had an alteration with his wife on 11 September 2006 while on restriction at the barracks and on 5 October 2006, he was referred to a mental health specialist by the Marine and Family Services Counseling Services for “endorsing numerous signs of combat stress.”  Additionally, it was noted during another medical session on 5 October 2006 the Applicant reported to his Dr, the flight surgeon at the Group Aid Station, MACG, his command was planning an administrative separation for non-medical issues and he questioned if he could be placed on medical hold or on a medical board for his issues.  The Doctor informed the Applicant the administrative separation overrides all other issues including a medical board and medical hold.  The Applicant questioned this and was informed that was the policy as the Doctor understood it.  

The Applicant's discharge package included a statement from the 2d LAAD SgtMaj dated 20 October 2006 which states the Applicant had a C5-C6 Disc Herniation due to "a physical altercation with police while at a military school in El Paso, Texas."  

The SgtMaj also notes in this same statement the Applicant's diagnosis of Intermittent Explosive Disorder.  On 20 October 2006, the Applicant was seen by Dr N. in the Camp Lejeune Mental Health Clinic.  Dr N. states the Applicant has an Intermittent Explosive Disorder and a Personality Disorder.  The Doctor also states the Applicant is “psychologically fit for duty, but suitability continues to be assessed” and recommends further counseling and medications to control the anger.  There is nothing stated about PTSD.  The only references to PTSD are in a 19 December 2006 Medical History Report completed by the Applicant, where he states he is taking medicine for psychological problems stemming from the El Paso incident and he has PTSD (from the El Paso incident).  The second reference was the 4 January 2007 Health Record reports which lists PTSD as an medical issue he was seen for.  However, there are no medical notes in his record that show he was treated for PTSD, how it manifests itself with regard to the Applicant’s behavior, or even that his PTSD would be one cause of his misconduct.  

The Board reviewed the Applicant's service record and notes numerous counseling entries during his first enlistment, as well as one of his retention warning entries for disrespect to a SNCO prior to the date the Applicant alleges the police brutality took place.  The Applicant clearly had an anger management problem which exhibited itself early in his career and continued up until he was discharged.   However, the Board found no medical diagnosis which stated the Applicant was not responsible for his actions or that his extensive list of medical complaints and issues were the cause of his misconduct.  The Board concluded an upgrade to his discharge would be inappropriate based on the severity of his misconduct and the frequency with which he was in trouble.

: ()  .  The Board reviewed the package of documents the Applicant sent to include different statements from immediate supervisors as well as an undated email, without header information, from the 2d LAAD SgtMaj, who is asking the Applicant’s supervisors to review their comments regarding his performance.  The Applicant does not provide any evidence that any one changed there statement based on the SgtMaj’s request for a review and there was no indication based on the evidence in the record statements were changed at the SgtMaj’s request.  The Board concurs the SgtMaj's email was improper but concluded this impropriety would not have changed the outcome of the administrative separation.  The Commanding General of 2d Marine Aircraft Wing made the ultimate determination of the characterization of discharge for the applicant.  In making a determination, he reviewed the Applicant's statement, statements from his chain-of-command, and the Applicant's service record.  The Board determined the Commanding General was fully aware of the Applicant's entire service record and made an appropriate determination.  Again, an upgrade to the Applicant's discharge is inappropriate.

After a thorough review of the available evidence, to include the Applicant’s Summary of Service,  Record, Discharge Process and evidence submitted by the Applicant, the Board found the discharge was proper and equitable.

ADDENDUM:  Information for the Applicant

Complaint Procedures:  If you believe that 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:  Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years from the 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.  If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted his 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 Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board.  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 Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’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 Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.  Additionally, the Board 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 subsequently is processed for an administrative involuntary separation or is referred to a court-martial for misconduct, the disability evaluation is suspended.  The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings.  If the action includes either a punitive or administrative discharge for misconduct, 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 Board for Correction of Naval Records can grant this type of narrative reason change.

Automatic Upgrades - There is no law or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving Naval service.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge 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.  Examples of documentation that may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  

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 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