ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20100707
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)	20030711 - 20040628  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  20040629	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20080121	Highest Rank:  
Length of Service:    Year(s)    Month(s)  23  Day(s)
Education Level:  	AFQT:  66
MOS:  0341
Proficiency/Conduct Marks (# of occasions):   () /2.4 ()	Fitness Reports:  

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

Periods of Unauthorized Absence: 	20060517 - 20070515 (364 days)

Periods of Conf:	SPCM (20060321) Pre-trial 20060307 - 20060320 (41 days), Post-trial 20060321 - 20060421 (30 days)  
               	SPCM (20070709) Pre-trial 20070605 - 20070708 (34 days), Post-trial 20070709 - 20070724 (16 days)

NJP:  	SCM:  		CC:  	Retention Warning Counseling:  

SPCM:  

- 20060321:	Article  (Willfully disobeyed order)
	Article  (Violation of a lawful order)
	Article  (Operate a motor vehicle while intoxicated)
	Article  (Assault, consummated by a battery, 2 specifications)
	Sentence:  FOR 120 DAYS, , 

- 20070709:	Article  (Absent without leave - Absented himself from his unit on 20060517, without authority, and did remain so absent until he surrendered to military authority on 20070515 (364 days))
	Sentence:  , , FOR 180 DAYS (20070605-20070708, 34 days)  , REPRIMAND
	Convening Authority Action (20071016) - The BCD is disapproved.  Only so much of the sentence as provides for reprimand, forfeiture of $867.00 per month for a period of 12 months and confinement for a period of 180 days is approved and ordered executed, but the execution of that part of the sentence extending to confinement in excess of 60 days is suspended for a period of 18 months from the date of trial, at which time, unless suspension is sooner vacated, the suspended part of the sentence will be remitted without further action.  

Administrative Corrections to the Applicant’s DD 214

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

	  “GENERAL (UNDER HONORABLE CONDITIONS)”

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:		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.  The Marine Corps Separation and Retirement Manual, (MCO P1900.16F, effective 1 September 2001 until Present, 
Paragraph 6210, MISCONDUCT.

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 violation of the UCMJ, Article 86 (in excess of 30 days), 91, 92, 111, and 128. 

D.  U.S. Code, Title 10, Section 1553 (d) (1) and (d) (2).

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

Applicant’s Issues

Nondecisional issues: The Applicant seeks an upgrade in the characterization of his service and re-enlistment code (RE code) at discharge in order to facilitate reenlistment in the Armed Forces.  The Applicant seeks an upgrade in the characterization of his service at discharge in order to facilitate access to Department of Veterans Affairs (VA) educational benefits.

Decisional issues:  The Applicant contends his characterization of service at discharge was inequitable and warrants consideration for relief in that personal circumstances, including his ongoing divorce, led to poor judgment and are mitigation for his misconduct of record.  The Applicant contends that his post-service conduct is worthy of consideration.

Decision

Date:  20111116	     	     Location: Washington D.C.	       Representation: 

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

The NDRB reviewed the Applicant’s record of service; it documents that he was suffering from Post-Traumatic Stress Disorder (PTSD), diagnosed in service.  As such, in accordance with U.S. Code, Title 10, Section 1553 (d) (1), the board included a member who is a physician, clinical psychologist, or psychiatrist.  Additionally, 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 NDRB 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.  Additionally, the NDRB conducted a thorough review of the circumstances that led to the Applicant’s discharge, and the discharge process, to ensure the discharge met the pertinent standards of both equity and propriety.  With respect to a Special Court-Martial conviction, relevant and material facts as stated in trial by court-martial are presumed by the NDRB to be established facts.

The Applicant enlisted in the Marine Corps at age 18 - without any waivers to enlistment standards - on an Infantry Option guarantee for training.  Upon completion of his required initial training, the Applicant was assigned to a deploying infantry battalion as a Mortarman.  Furthermore, the Applicant completed a combat deployment as an Infantryman in the Al-Anbar Province of Iraq while conducting combat operations in support of Operation IRAQI FREEDOM (OIF).  The military service record documents that the Applicant received the Combat Action Ribbon for his personal actions while engaged in direct combat operations against enemy forces in Iraq.  The Applicant’s record of service reflects two Special Courts-Martial in which the Applicant was found guilty of the following violations of the Uniform Code of Military Justice (UCMJ): Article 86 (Unauthorized absence for 364 days), Article 91 (Insubordinate conduct by willful disobedience of orders), Article 92 (Violation of lawful order or regulation), Article 111 (Operation of a motor vehicle while intoxicated), and Article 128 (Assault, 2 specifications).  The Applicant was convicted at trial by Special Court-Martial, twice.  In the Applicant’s first trial (20060321), the Military Judge awarded the Applicant confinement for 120 days, a forfeiture of pay, and reduction in rank to E-1.  Because of a Pre-Trial Agreement, the Applicant’s confinement was reduced to 90 days, with 43 days credited for pre-trial confinement already served.  The Applicant completed his awarded confinement on 21 April 2006.  On or about 17 May 2006, the Applicant absented himself from his unit, without authority, and did remain so absent until 16 May 2007; the Applicant’s absence was terminated by his surrender to military authority.  Due to the extensive duration of absence (364 days), coupled with previous punitive discipline measures having been adjudicated, the Command again referred the charges to trial by Special Court-Martial.  On 09 July 2007, the Applicant was convicted at a second trial and was sentenced to serve 180 days of confinement and be discharged with a Bad Conduct Discharge (BCD).  Pursuant to a Pre-Trial Agreement, the adjudged period of confinement was limited to 60 days.  During the proceedings, the government prosecutor stipulated to the fact that the Applicant was suffering from PTSD and Bi-Polar Disorder.  The Military Judge adjudged a BCD as part of sentencing, but then recommended to the Convening Authority that he not execute the BCD so that the Applicant remained eligible for further 

medical care through the VA.  The Convening Authority accepted the Military Judge’s recommendations, and the Applicant was separated administratively for Misconduct (Commission of a Serious Offense) pursuant to paragraph 6210.6 of the Marine Corps Separation and Retirement Manual (MARCORSEPMAN) with a General (Under Honorable Conditions) characterization of his service.

(Non-decisional Issue)  The Applicant seeks an upgrade to his discharge characterization of service in order to achieve full eligibility for VA educational benefits and is seeking a change to his reentry code to facilitate reenlistment.  There is no requirement, or law, that grants re-characterization solely on the issue of facilitating access to VA educational benefits.  Additionally, the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, and is not authorized to change a reentry code.  Regulations limit the NDRB’s review solely to a determination of the propriety and the equity of a discharge.  As such, these issues do not serve to provide a foundation upon which the NDRB can grant relief.

The Applicant is directed to the Addendum, specifically, the paragraph regarding the U.S. Department of Veterans Affairs, who determine eligibility for post-service benefits, not the NDRB.  The VA conducts its own determination of eligibility based on service records and input from an Applicant upon their request.  The Applicant should refer to the Veterans Administration website (http://www1.va.gov/opa/Is1/1.asp) for additional assistance.  The NDRB is not authorized to change the reentry code as requested.  The Applicant may petition the Board for Correction of Naval Records using standard DD Form149.  Further information may be found online at http://www.donhq.navy.mil/bcnr/bcnr.htm.

(Decisional Issues)  (Propriety/Equity)  RELIEF NOT WARRANTED.  The Applicant contends his characterization of service at discharge was inequitable and warrants consideration for relief in that personal circumstances, including his ongoing divorce, led to poor judgment and are mitigation for his misconduct of record.  The Applicant contends that his post-service conduct is worthy of consideration.

(Propriety)  Whenever a Marine is involved in misconduct, as described in paragraph 6210.6 of the MARCORSEPMAN, commanders are directed to process the Marine for separation, unless rehabilitation and retention are warranted.  The characterization of service for Misconduct normally shall be Under Other Than Honorable Conditions, but characterization as General (Under Honorable Conditions) may be warranted in some circumstances.  Moreover, despite a Marine’s prior record of service, certain serious offenses warrant separation to maintain proper order and discipline.  The Applicant was found guilty at two separate trials by Special Court-Martial and was awarded a Bad Conduct Discharge.  The charges as specified in the trial by court-martial were serious offenses as defined by chapter 6 of the MARCORSEPMAN.  As such, the command determined that retention was no longer warranted, but did provide a measure of clemency due to the diagnosis of PTSD and Bi-Polar Disorder by not executing the BCD and administratively separating the Applicant with a General (Under Honorable Conditions) characterization for Misconduct.  The NDRB determined there was no impropriety because of an error of fact, law, procedure, or discretion with the discharge at the time of issuance, and the rights of the Applicant were not prejudiced.

(Equity)  The Applicant contends his disciplinary problems were the result of stress caused by his family situation.  The Applicant contends the characterization of his discharge should be upgraded because he suffered setbacks and made poor choices due to marital infidelity and a pending divorce.  The NDRB recognizes that serving in the military is challenging.  Most service members, however, serve honorably and therefore earn their Honorable discharges.  In fairness to those service members, commanders and separation authorities are directed to ensure that undeserving Marines receive no higher characterization than is due.  There is no evidence in the record, nor did the Applicant provide any documentation, to indicate he attempted to utilize the numerous services available for service members who undergo personal problems during their enlistment such as the Navy Chaplain, Medical or Mental Health professionals, Navy Relief Society, Family Advocacy Programs, or even the Red Cross.  The NDRB determined the Applicant’s personal problems were not mitigating factors to warrant a change in discharge characterization of service and that they were taken into consideration during his separation proceedings.  Relief denied.

The Applicant contends that his post-service conduct is worthy of consideration for an upgrade to Honorable.  The NDRB considers 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.  Besides the Applicant’s statement on the DD Form 293, he provided letters of reference attesting to his character and current involvement with his church.  The Applicant should be aware submission of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the NDRB on a case-by-case basis.  The NDRB determined the Applicant did not provide sufficient post-service documentary evidence to form a basis of relief.

(NDRB Board Issue)  The Applicant was diagnosed, in-service, with PTSD as stipulated by the prosecution in the trial by Special Court-Martial; as such, the NDRB reviewed the Applicant’s separation to determine if PTSD was a mitigating factor in the Applicant’s misconduct, though the Applicant did not identify it as an issue for consideration.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the NDRB determined that the narrative reason for separation and the resulting characterization of service at discharge was proper, was equitable, was warranted, and was, and is, consistent with the characterization of discharges given to others in similar circumstances.  The diagnosis of PTSD was the sole reason for the command to overturn the awarded punitive Bad Conduct Discharge and instead, award a much more lenient administrative discharge with a characterization of service of General (Under Honorable Conditions).  An upgrade or change would be inappropriate.  Accordingly, relief is not warranted.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service, service record entries, and the discharge process, the NDRB determined that   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 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