ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20100401
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)	2000831 - 20010820  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  20010821	Age at Enlistment:  
Period of Enlistment:   Years   Months (Aviation Electronics)
Date of Discharge:  20050331	Highest Rank:  
Length of Service:    Year(s)    Month(s)  11  Day(s)
Education Level:  12	AFQT:  68
MOS:  3531 (Motor Vehicle Operator)
Proficiency/Conduct Marks (# of occasions):   () /  ()	Fitness Reports:  

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

Periods of UA/CONF:  	 

NJP:  

SCM:  

- 20040914:	Article 117 (3 Specifications: Wrongful use of provoking words)
	Article 91 (2 Specifications; Treat with contempt an NCO)
	Article 86 (Absence without leave, 2 Specifications – Failure to be at appointed place of duty at time prescribed)
	Sentence: Reduction in Rank to E-1/Pvt, Forfeiture of pay for 1 month, 45 days restriction.   
	Sentence Suspended: None

SPCM:  (Note: Summary Court-Martial as stated above was the result of a pre-trial agreement after charges were originally referred to a trial by Special Court-Martial.  Per pre-trial agreement, in favor of reducing the venue from a punitive Special Court-Martial to an administrative Summary Court-Martial, the Applicant agreed to plead guilty to the charges and specifications and further waived his right to an administrative separation hearing board.  He further acknowledged that his processing for separation would change from Personality Disorder to Misconduct (POM)/OTH)

CC:  

Retention Warning Counseling:  

- 20030702:	For the following deficiencies: Failing to perform your duties properly while standing guard post in FOB An-Najaf, Iraq.  Found asleep on post, weapon not in proper weapons handling condition, and making derogatory remarks toward a non-commissioned officer.  Counseled on assistance and advised that failure to take corrective actions may result in administrative reduction, separation, or limitation on further service.  

- 20040108:	For being not recommended for promotion to Corporal due to lack of leadership and being emotionally unstable.  Provided specific recommendations for corrective action and advised that failure to take corrective actions may result in administrative separation or judicial proceedings.   
 
- 20040405:	For being not recommended for promotion to Corporal due to failure to meet the standards of Enlisted Promotion IAW MCO P1400.32C; specifically your failure to positively demonstrate the potential, motivation, and maturity to discharge the duties of a small unit leader.  Provided specific recommendations for corrective action and advised that failure to take corrective actions may result in reduction by competency review board, non-judicial or judicial punishment, or administrative separation.

Types of Documents Submitted/reviewed

Related to Military Service:
	DD 214:		Service/Medical Record:		Other Records:	
					VA Treatment 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.  Paragraph 6203.3 CONVENIENCE OF THE GOVERNMENT, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 1 September 2001 until Present.

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.

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

Applicant’s Issues

Decisional issues: The Applicant requests his discharge characterization of service be upgraded to Honorable and the narrative reason for separation be changed.  The Applicant contends that the Department of Veterans Affairs’ (VA) diagnosis of PTSD (service-related – combat, 70% disability) demonstrates that he was incorrectly diagnosed with a Personality Disorder that resulted in his erroneous separation from the Marine Corps and was an extenuating and mitigating factor to his misconduct.  

Decision

Date:  20110602		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 identified one decisional issue related to the propriety or equity of his discharge for the NDRB’s consideration; additionally, the NDRB completed a thorough review of the circumstances that led to his discharge, and the discharge process, to ensure the discharge met the pertinent standards of equity and propriety.

The Applicant’s official service record documents three proper paragraph 6105 retention-counseling warnings regarding his performance and conduct and advising him that failure to take corrective action could result in administrative separation.  Moreover, the Applicant’s record of service contains one Summary Court-Martial for violations of the Uniform Code of Military Justice (UCMJ): specifically, Article 86 (Absence without leave – failure to be at appointed place of duty, 2 specifications); Article 91 (Insubordinate conduct, treatment with contempt, to a noncommissioned officer, 2 specifications); and, Article 117 (Provoking speech and gestures, 3 specifications).

The Applicant’s official military service record documents that he is a combat veteran, having deployed to a designated combat zone in the Al-Anbar province of Iraq to conduct ground combat operations in support of Operation IRAQI FREEDOM from February 2003 until October 2003.  The Applicant was awarded the Combat Action Ribbon for individual combat actions.

In December 2003, the Applicant referred himself for mental health treatment due to suicidal and homicidal ideations.  Following an evaluation by the Division Psychiatrist, he was referred for alcohol counseling and evaluation for possible alcohol dependency.  On 13 January 2004, the Applicant was admitted to the psychiatry ward at Balboa Naval Hospital for an inpatient evaluation; he was subsequently released to inpatient alcohol treatment program.  While in alcohol treatment, the Applicant became unstable and was re-admitted to Balboa Naval Hospital mental health ward.  The Division Psychiatrist recommended that the Applicant be separated expeditiously by reason of Convenience of the Government, Condition Not a Disability - Personality Disorder.  While pending administrative separation, the Applicant was referred to trial by Special Court-Martial for the Misconduct of record.  He was separated on 31 March 2005.  Though recommended for separation Under Other Than Honorable Conditions for both Misconduct (Pattern of Misconduct) and Personality Disorder, the Separation Authority determined that the misconduct of record was a manifestation of his diagnosed personality disorder and, as such, approved the separation for a Personality Disorder as the narrative reason for discharge.  The Applicant received a General (Under Honorable Conditions) characterization of service at discharge.

Decisional Issue: ()  .  The Applicant requests his discharge characterization of service be upgraded to Honorable and the narrative reason for separation be changed.  The Applicant contends that the VA’s diagnosis of PTSD (service-related – combat, 70% disability) demonstrates that he was incorrectly diagnosed with a Personality Disorder that resulted in his erroneous separation from the Marine Corps and was an extenuating and mitigating factor to his misconduct.

The NDRB reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis.  If such a review reveals an impropriety or inequity, relief is in order.  Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with the standards of discipline of the Naval Service. The Applicant participated in direct combat operations for 10 months during Operation IRAQI FREEDOM I.  Upon return to his home station, he sought mental health assistance.  He was evaluated and treated for both psychiatric concerns and alcohol dependency.  He was placed on medications and assigned individual and group therapy programs and was recommended for administrative separation.  The Separation Authority (Commanding General, MCAGCC) determined that the Applicant’s misconduct of record was a direct manifestation of his diagnosed Personality Disorder and approved separation for such with an assigned characterization of his service at discharge of General (Under Honorable Conditions).  Since discharge, the Applicant has been evaluated and treated by three different VA treatment centers.  The VA regional medical center has diagnosed the Applicant as suffering from chronic Post-Traumatic Stress Disorder – directly related to combat service – and awarded the Applicant a disability rating of 70%.  The Applicant continues to receive in-depth treatment and assistance with the VA for his diagnosed conditions.  In reviewing the Applicant’s contention, the NDRB took note of the VA Medical Center Psychiatric Board’s assessment that the Military Treatment Facility, due to the lack of a proper assessment period, had misdiagnosed the Applicant.  

After a thorough review of the facts and circumstances unique to this case, the NDRB discerned an inequity in the discharge action.  Based on the Applicant’s documentation and his official service and medical records, coupled with the facts and circumstances unique to this case, the NDRB determined that relief was both proper and warranted.  The NDRB voted unanimously that an upgrade in the Applicant’s characterization of service at discharge to Honorable was appropriate and warranted.  Based on the long-term evaluation and treatment documented with the VA, the appropriately credentialed mental health care provider’s determination that the Applicant suffers from PTSD, and the Command’s own determination that his misconduct was a manifestation of his disorder, the NDRB determined that the Applicant was separated inequitably.  As such, the NDRB determined that relief in the form of a change in narrative reason for separation is warranted.  Since no other narrative reason for separation accurately describes the reason the Applicant was separated, the NDRB determined that the reason for discharge shall change to Secretarial Authority.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service,  record entries, discharge process, and evidence submitted by the Applicant, the Board found the discharge was inequitable.  Therefore, the awarded characterization of service shall  , and the narrative reason for separation shall change to .  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 and Post-Service Conduct

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