ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20080625
Characterization of Service Received:  
Narrative Reason for Discharge:  IN LIEU OF TRIAL BY COURT-MARTIAL
Authority for Discharge:  MARCORSEPMAN 

Applicant’s Request:	Characterization change to:  
			Narrative Reason change to: 

Summary of Service

Prior Service:
Inactive: USMCR (DEP)	19940331 - 19940717  		Active:    19940718-19981007 HON
            19981008-20021205 HON

Period of Service Under Review:
Date of Enlistment: 20021206	Period of Enlistment:   Years   Months	Date of Discharge:  20031005
Length of Service:   Years   Months  00 Days        Education Level:            Age at Enlistment:  35            AFQT:  76
MOS:  6092 (Aircraft Maintenance)    Highest Rank:                 Fitness Reports:  
Proficiency/Conduct Marks (# of occasions):	   () /  ()
Awards and Decorations (per DD 214):  Rifle      MM

Periods of CONF:  20030805 – 20030922 (48 days)

NJP:  
- 20030107:  Article 86 – Unauthorized Absence
                   Article 92 – Disobey an order or regulation (2 specifications)
	  Awarded:        Suspended:   

SCM:     CC:  

SPCM:  NFIR [Extracted from FitRep]
            ~ 20030805:  Article 134 – Communicating a threat (Threatened to harm OIC, Division Chief and NCOIC)
	  Sentence: CONF 60 days, RIR     

6105 Counseling: 2
19950804:    For Admin Drop from due to academic failure
20030107:    For Articles 134’s – (conduct unbecoming an NCO and False statements)

Types of Documents Submitted/reviewed

Related to Military Service:	DD 214:  	Service and/or Medical Record:  		Other Records:  

Related to Post-Service Period:	
	Employment:			Finances:			Education/Training:	
	Health/Medical Records:		Substance Abuse:			Criminal Records:	
	Family/Personal Status: 		Community Service:  		References:  		
Additional Statements From Applicant:  		From Representation:  		From Member of Congress:  

Other Documentation (Describe) 

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

Applicant’s Issues

1.  Mitigating circumstances (existing medical condition).

Decision

Date:  20090416             	Location:  Washington D.C.	        Representation:  

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  IN LIEU OF TRIAL BY COURT-MARTIAL.

Discussion

:  ()    The Applicant contends his existing medical condition was a mitigating factor concerning his misconduct in the Marine Corps.  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 was marred by two retention warnings, one NJP and a presumed SPCM, which was not found in his service records;  however, he served 48 days in confinement for violations of the Uniform Code of Military Justice (UCMJ):  Article 86 (UA), Article 92 (Failure to obey an order or regulation) and Article 134 (Communicating a threat).  In addition, the Applicant was separated In Lieu of a Trial by Court-Martial from the Marine Corps, for which the details again were not available. These violations are considered serious offenses.  

Upon enlistment, the Applicant had disclosed the fact he was prescribed Ritalin from the ages of 5 to 16.  What is unclear is the extent the Marine Corps knew about the Applicants condition prior to enlisting.  It’s apparent the Applicant was seen at MEPS and deemed fit for duty.  Based on evaluations dated 10 November 1972, 9 December 1980 and 24 January 1985; the psychological evaluations show he was above-average in verbal conceptualization and numerical skills, but significantly below average in visual-motor and related spatial relationship skills.  He was diagnosed with Hyperkinetic Syndrome during his childhood, which could possibly have been a misdiagnosis at the time leading to his enlistment in the Marine Corps. 

Once the Applicant joined the Marine Corps, he was able to complete two enlistments without any setbacks, progressing from the rank of Private through Corporal.  But this all changed when the Applicant was promoted to the rank of Sergeant and was expected to fulfill a supervisory role.  Due to his condition, he was unable to deal with the severe social interaction problems that he had.  It is in this supervisory role his condition perpetuated to the point the Applicant could not function in a way that was commensurate with his current rank or responsibilities.  As a result, the Applicant’s Marine Corps career started to decline rapidly to the point he was discharged unfavorably.

Post service, the Applicants personal life continued to free-fall to the point his marriage failed, lost his job and ended up moving back with his parents.  The Applicant (age 40) was admitted to psychiatric ward at Beaufort Memorial Hospital on 15 September 2007 for evaluation and medication regulation.  Throughout March and April 2008, the Applicant was evaluated and diagnosed with Asperger’s Syndrome, whose characteristics exhibit autistic-like behaviors and marked deficiencies in social and communication skills.  It is with this diagnosis, the Board felt the Applicant’s mental condition was present during his enlistment in the Marine Corps and may have mitigated some, but not all, the misconduct which led to his discharge.  It’s believed  had the Marine Corps have known the full extent (proper diagnosis) of the Applicant; he would not have been able to enlist.     

The Applicant has requested an upgrade in his characterization to “Honorable”.  For the edification of the Applicant, an “Honorable” discharge is warranted when the quality of a member’s service has met the standards of accepted conduct and performance of duty for military personnel, it is appropriate to characterize that service under “Honorable” conditions.  
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.  The Board’s vote was 4-1 that the characterization of the discharge should be upgraded to “General (Under Honorable Conditions)”.  However, by unanimous vote, the narrative reason for the discharge, “In Lieu of Trial by 

Court-Martial” shall remain as issued.  The Board determined the upgrade to “General (Under Honorable Conditions)” was appropriate. 

 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 

Pertinent Regulation/Law

A.  Paragraph 6419, SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL, 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 IV, Para 403m(7)(b), Presumption Concerning Court-Martial Specifications.

C.  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.

D.  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 violation of the UCMJ:  Article 86 (UA);  Article 92 (Failure to obey an order or regulation) and Article 134 (Communicating a threat).

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