ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20090930
Characterization of Service Received:    
Narrative Reason for Discharge:    
Authority for Discharge:   MARCORSEPMAN 

Applicant’s Request:	Characterization change to:  
	Narrative Reason change to:  MEDICAL / INVOLUNTARY

Summary of Service

Prior Service:
Inactive:	USMCR (DEP)	20060411 - 20060814  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  20060815	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20090224	Highest Rank:  
Length of Service:    Year(s)    Month(s)  10  Day(s)
Education Level:  	AFQT:  35
MOS:  1341
Proficiency/Conduct Marks (# of occasions):   () /  ()	Fitness Reports:  

Awards and Decorations (per DD 214):	Rifle   

Periods of UA/CONF:  

NJP:  

- 20070228:	Article  (UA – 2045, 20070219 – 1900, 20070220 from appointed place of duty)
	Awarded:     Suspended:  

- 20071129:	Article  (UA – 1145 – 1500, 20071009 from appointed place of duty)
	Article  (Failure to obey order or regulation – by traveling outside liberty limits of 300 miles)
	Awarded:    Suspended:  

- 20080109:	Article  (General Article), 2 specifications
	Specification 1: Broke restriction 2200, 20071203.
	Specification 2: Wearing unauthorized insignia, ribbons, medals, and badges on his uniform. 
	Awarded:   Suspended:  

SCM:  

- 20090130:	Article  (Failure to obey order or regulation – keeping or storing ammunition rounds in his residence)
	Sentence: 

SPCM:  

CC:  

Retention Warning Counseling:  

- 20070228:	For violation of article86 20070219 – 1900, 20070220.

- 20070228:	For NJP held this date violation of article 86.

- 20081030:	For concerns with PTSD, advised and understand symptoms of PTSD.

- 20081030:	For NJP held on 20080109 for violation of article 134 x2, breaking restriction and wearing unauthorized insignia, ribbons, medals, and badges on his uniform.

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:		Substance Abuse:		Criminal Records:	
	Family/Personal Status: 		Community Service:		References:	
	Additional Statements:
		From Applicant:		From Representation:		From Congress member:	

	Other Documentation:	

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

Applicant’s Issues

1.  Suffered from severe depression and post-traumatic stress disorder (PTSD).
2.  Was mistreated and hazed.
3.  Always gave 110 percent effort.

Decision

Date:  20100603		Location: Washington D.C.	 Representation: 

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

Discussion

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 Applicant’s record of service included four 6105 counseling warnings; three nonjudicial punishments for violations of the Uniform Code of Military Justice (UCMJ): Article 86 (Absent from appointed place of duty, 2 specifications), Article 92 (Failure to obey order or regulation, by traveling outside liberty limits of 300 miles), and Article 134 (2 specifications: Breaking restriction and Wearing unauthorized insignia, ribbons, medals, and badges on his uniform); and one summary court-martial for violation of the UCMJ: Article 92 (Failure to obey order or regulation, keeping or storing 5.56mm ammunition rounds in his residence).  Based on the offenses committed by the Applicant, his command administratively processed him for separation.  When notified of administrative separation processing, the Applicant waived his rights to consult with a qualified counsel, submit a written statement, and request an administrative board.

Issue 1:  (Decisional) ()  .  The Applicant contends he suffered from severe depression and PTSD due to losing his best friend from small arms fire.  (The Applicant’s fiancée stated his best friend was killed by a sniper.) 
The NDRB found no evidence, nor did the Applicant provide any, that his best friend was killed in Iraq.  On the contrary, the NDRB found evidence the Applicant’s friend did not die in Iraq, but rather from a vehicle equipment malfunction in Camp Pendleton, California, on 6 October 2007, one year prior to deploying to Iraq.

The Applicant provided four statements (including his), but no in-service or post-service medical documentation to support his contention.  The NDRB received a copy of the Applicant’s medical record and found on his Report of Medical History (DD Form 2807-1) dated 29 October 2008, that he marked “Yes” to blocks 17.e. and 17.g., Have you ever had or do you now have: e. Received counseling of any type and g. Been evaluated or treated for a mental condition.  In block 29, the Applicant wrote, “#17e, I have seen a psychiatrist at the Naval Hospital. It was on the 20th of October.  #17.g, same reason.”  In block 30.a. (Examiner’s summary and elaboration of all pertinent data), the doctor noted on 20 November 2008, “17e – Mental Health counseling for s/s [signs or symptoms] PTSD.  Admin Sep for “failure to adapt” and NJP” “g – As above.”  On the Report of Medical Examination (DD Form 2808) dated 20 November 2008, the doctor marked, “Abnormal” for block 40, Psychiatric, and wrote, “PTSD symptoms.” In block 73 (notes (continued) and significant or interval history) the doctor wrote, “See 2807-1.” In block 77 (summary of defects and diagnoses), the doctor wrote, “2807-1.” In block 78 (recommendations – further examinations indicated), the doctor wrote, “1. F/U outside provider for PTSD symptoms.”  However, the NDRB reviewed the Chronological Record of Medical Care dated 20 October 2008, and the chief complaint by the Applicant was, “I’m worried about my sexuality.” The doctor noted, “Condition is not considered Deployment Related.”  The clinical psychologist wrote, “Pt reported he was married x one month in Feb. 2008 but needed to terminate his marriage [sic] as he is not attracted to females.” “Since pt does not experience any s/s [signs or symptoms] of depression or anxiety, pt referred to legal administration for help with his separation process.”  The clinical psychologist diagnosed the Applicant with occupational problem and recommended administrative separation due to unsuitability in accordance with MILPERMAN 1910-120 [Separation by reason of convenience of the government – physical or mental conditions] and this condition did not constitute a physical disability.   Furthermore, all 17 response questions in the PTSD Checklist, undated but filled in while the Applicant was a member of his last unit, were answered, “Not at all.”  After a careful review of the medical and service records and documentation submitted by the Applicant, the NDRB determined there was insufficient evidence to support the Applicant’s contention that he suffered from either severe depression or PTSD from combat operations while in the service, and consequently, were not mitigating factors in his misconduct.  Relief denied.

Issues 2-3:  (Decisional) ()  .  The Applicant contends he was mistreated and hazed while in the service, but he always gave 110 percent effort.  He stated he was denied promotion to E-2 and later to E-3 and his proficiency/conduct (pro/con) marks were kept low for eleven months.  Other than his statement and statements from two other people, the Applicant provided no other documentation to support his contention.  There was no statement by the Applicant to his commanding officer complaining of mistreatment or hazing and nothing in the commanding officer’s letter with regard to these issues.  The NDRB reviewed the Applicant’s pro/con marks and found the low marks in conduct coincided with either his NJPs or SCM.  On 31 July 2007, the Applicant received pro/con marks of 4.3/4.3.  The NDRB determined he was not mistreated or hazed and although the Applicant thinks he performed to the best of his ability, he met the requirements to be administratively separated by reason of misconduct – pattern of misconduct.

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 his discharge.  The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews, Automatic Upgrades, and Post-Service Conduct.

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. 

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