ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20100517
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)	20030322 - 20030914  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  20030915	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20080723	Highest Rank:  
Length of Service:   Year(s)   Month(s)  28 Day(s)
Education Level:  	AFQT:  58
MOS:  0311
Proficiency/Conduct Marks (# of occasions):   () /  ()	Fitness Reports:  

Awards and Decorations (per DD 214):	Rifle          (2) 

Periods of UA: NONE

CONF with Civil Authorities:  20061103-20071224 (416 days)

NJP:  		SCM:  		SPCM:  

CC:  
- 20070410:	Offense: Vehicle theft, chased by police via vehicle, accident (driving into homes – damaging 2)
	Sentence:  2 years in county jail (served 416 days; 20061103-20071224)

Retention Warning Counseling:  
- 20080603:	For civilian conviction of vehicle theft and being processed for admin separation.

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

	Block 12c, Net Active Service This Period, should read: “03 08 18”
	  “MARCORSEPMAN PAR. 6210.7”
  “GKB1”
Block 29, Dates of Time Lost During this Period, should read: “(416) 20061103-20071224”

The NDRB will recommend to the Commandant of the Marine Corps 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:		Substance Abuse:		Criminal Records:	
	Family/Personal Status: 		Community Service:		References:	
	Additional Statements:
		From Applicant:		From Representation:		From Congress member:	
	Other Documentation:	

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.  Applicant contends Post-Traumatic Stress Disorder (PTSD) mitigates the misconduct for which he was separated.  

Decision

Date:  20111019                   Location:  Washington D.C.          Representation:  

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

Discussion

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 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 included  6105 counseling warning and a civilian conviction for vehicle theft (while under the influence of alcohol), which involved a police chase and ended in an accident that damaged two homes.  The Applicant was convicted (10 April 2007) in civilian superior court and sentenced to two years in jail.  He served 416 days in the hands of civil authorities before his release and return to Marine Corps custody on or about 24 Dec 2007.  Based on the offenses committed by the Applicant,  command administratively processed  for separation for misconduct due to civilian conviction and misconduct due to commission of a serious offense.  When notified of administrative separation processing using the  procedure on 21 May 2008, the Applicant exercised  rights to consult with a qualified counsel, submit a written statement for consideration by the separating authority, and to request an administrative separation board (ASB).  The Applicant appeared before the administrative board on 11 July 2008.  The ASB determined: (by 3-0 vote) that the Applicant did commit serious offense misconduct as evidenced by civil conviction; (by 3-0 vote) that the Applicant should be separated from the Marine Corps (with no suspension of discharge); and that the Applicant should receive a General (Under Honorable Conditions) characterization of service.  The Applicant’s Commanding Officer concurred with the Board’s findings and recommendation and forwarded his endorsement to the Separation Authority on 17 Jul 2008.  After considering all the facts and circumstances surrounding this case, to include the Applicant’s PTSD diagnosis and the entirety of the Applicant’s record of service, on 22 Jul 2008 the Separation Authority directed that the Applicant be separated from the Marine Corps with a General (Under Honorable Conditions) discharge due to Misconduct (Civil Conviction).

:  (Decisional) ()  .  The Applicant contends PTSD mitigates the misconduct for which he was separated.  While he may feel that this was the underlying cause of his misconduct, the record clearly reflects his misconduct was willful and 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 that he should not be held accountable for his actions (theft of a vehicle, drunk driving, and damage to homes from vehicle mishap).  Further, 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 Board for Correction of Naval Records can grant this type of narrative reason change.

Per the Marine Corps Separation and Retirement Manual (MARCORSEPMAN), an Honorable characterization of service is warranted when the quality of a member’s service generally meets the standard of acceptable conduct and performance for Naval personnel, or is otherwise so meritorious that any other characterization of service would be clearly inappropriate.  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.  A discharge Under Other Than Honorable Conditions is warranted when a member engages in conduct involving one or more acts or omissions that constitute a significant departure from the conduct expected of members of the Naval Service, and is the most appropriate characterization when considering the Applicant’s service.  However, the members of the Applicant’s ASB, his Commanding Officer, and the Separation Authority all determined that partial mitigation was warranted due to the Applicant’s combat service and diagnosis of PTSD.  After careful review and deliberation, the Board agreed but determined that PTSD did not fully mitigate the Applicant’s misconduct nor alleviate his personal responsibility for his actions.  Accordingly, the Board determined that mitigation was applied in awarding the Applicant a General (Under Honorable Conditions) characterization of service and found this issue did not provide a basis for which relief could be granted.  Relief denied.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service, medical and  record entries, and the administrative separation 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, specifically the paragraphs titled Additional Reviews, Automatic Upgrades, Reenlistment/RE-code, Employment/Educational Opportunities, Service Benefits 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