ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20100908
Characterization of Service Received:  
Narrative Reason for Discharge:  
Authority for Discharge:  MARCORSEPMAN 

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

Summary of Service

Prior Service:
Inactive:	NONE		Active:	

Period of Service Under Review:
Date of Current Enlistment:  20051206	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20090522	Highest Rank:  
Length of Service:    Year(s)    Month(s)  17  Day(s)
Education Level:  	AFQT:  42
MOS:  0311
Proficiency/Conduct Marks (# of occasions):   () /  ()	Fitness Reports:  

Awards and Decorations (per DD 214):	, ,  (WITH 2 STARS),  (2), , ,
                                                                  Rifle 

Periods of UA/CONF:  20090220 - 20090512 (82 days / Pre-Trial Confinement)
Time Lost (per DD 214):  20090220 - 20090512 (82 days)

NJP:  

- 20071012:	Article  (Failure to obey lawful order or regulation), 2 specifications
	  Specification 1: Traveling out of bounds without an out of bounds chit
	  Specification 2:  Bringing an unregistered firearm on base
	Awarded:    Suspended:  

SCM:  	 

SPCM:   Charges were prepared for referral to trial on 04 March 2009, but were subsequently withdrawn due to request for, and acceptance of, administrative separation in lieu of trial by court martial.  Applicant was in pre-trial confinement pending trial from 20090220-20090512 for 82 days.  Charges specified as follow: 

	Article 89 (Disrespect toward superior commissioned officer)
	Article 107 (False official statement)
	Article 108 (Military property: loss, damage, destruction, disposition) 
	Article 128 (Assault)
	Article 134 (Firearm discharging)

CC:  	  

Retention Warning Counseling:  

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.  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.  United States Code, Title X, Section 1553 (d) as amended and codified into public law.  Post-Traumatic Stress Disorder or Traumatic Brain Injury special considerations.

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

Applicant’s Issues

Decisional issues:  (1) The Applicant contends that his Traumatic Brain Injury (TBI), Post-Concussive Syndrome (PCS), and Post-Traumatic Stress Disorder (PTSD) are mitigating factors to his misconduct.  (2) The Applicant contends that his honorable and meritorious service should be seen as mitigating factors to his post-injury conduct.  (3) The Applicant contends that his narrative reason for discharge should be changed to Secretarial Authority as his injuries resulted in diminished capacity, and he was unable to conform to the standards of the Marine Corps any longer.

Decision

Date:  20110802	      	    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 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.  The Applicant submitted three decisional issues for the NDRB’s consideration.  Additionally, the NDRB completed 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 equity and propriety.  

The Applicant entered military service at age 23 with waivers to enlistment and induction standards for pre-service drug use (marijuana) and his status as a non U.S. citizen, resident alien.  The Applicant enlisted with a guaranteed contract for Infantry.  His military service record documents that he is a combat veteran, having served honorably during two combat deployments with a Marine Infantry Battalion in the Al-Anbar Province, Iraq in support of Operation IRAQI FREEDOM – January to August 2007 (Habbaniya) and April to June 2008 (Fallujah).  Additionally, the Applicant was awarded the Purple Heart Medal for injuries sustained in direct combat and received the Combat Action Ribbon for his individual actions against enemy forces.

The Applicant’s official record of service includes no 6105 retention-counseling warnings and one company commander level nonjudicial punishment for violation of the Uniform Code of Military Justice (UCMJ): Article 92 (Failure to obey a lawful order).  
The NDRB reviewed the Applicant’s discharge package to ensure that he was properly discharged and was accorded all rights as required by the Marine Corps Separation and Retirement Manual (MARCORSEPMAN) as related to the administrative discharge process.  The Applicant requested separation in lieu of trial by court-martial; as such, certain administrative requirements are mandated as part of the process.  Among these, the Applicant was provided a detailed legal defense counsel.  As a function of the separation in lieu of trial process, the Applicant declared that he understood the elements of the offenses as charged against him.  Furthermore, the Applicant admitted - in writing - that he was guilty of the offenses as charged and that he fully understood that if he was discharged under other than honorable conditions, that discharge characterization of service might deprive him of virtually all veterans benefits.  The Separation Authority approved the Applicant’s request for administrative separation in lieu of trial by court-martial; he was subsequently discharged effective 22 May 2009 with an Under Other Than Honorable Conditions characterization of service and an RE-4 reentry code (not recommended for reenlistment).

Issue 1: (Decisional) (Equity) RELIEF WARRANTED.  (1) The Applicant contends that his TBI, PCS, and PTSD are mitigating factors to his misconduct.  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 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’s record indicates he was wounded by an improvised explosive device (IED) while a turret gunner.  He was thrown into the front of the vehicle and was knocked unconscious.  Due to gaining and then losing consciousness again, the Applicant was intubated and medevaced by helicopter to Balad Army Surgical Hospital and then further transported to Landstuhl Medical Center.  He was treated and transported to Bethesda Regional Medical Center who then transferred him to a VA Rehabilitation Center in Tampa, Florida.  The Applicant was eventually joined to Wounded Warrior Battalion-East at Camp Lejeune.  The Applicant’s medical records contained extensive documentation of the evaluations, diagnoses, and treatment regimens undergone since the date of the IED attack.  Since discharge, the Applicant has been determined to be 100% disabled by the Social Security Administration.

The NDRB conducted a thorough review of the Applicant’s record of service, his combat deployment history, the Applicant’s in-service mental health diagnoses of TBI, PCS, and PTSD, his alleged misconduct of record, along with his Manual for Courts Martial Rule 706 (R.C.M 706) mental condition inquiry, which confirmed the above diagnoses.  The NDRB agreed with the findings of the R.C.M. 706 conclusion that the Applicant did suffer from a serious mental disease or defect at the time of his misconduct.  Furthermore, the NDRB found that there was significant evidence to suggest that the Applicant, at the time of the alleged misconduct, had significant difficulties with disinhibition and aggression that made it difficult for him to abstain from impulsive actions, particularly when presented with complex stimuli around him.  These challenges were further compounded by medications that had been prescribed that were known to also cause disinhibition, further exacerbating the Applicant’s already limited coping abilities as a result of the TBI and PTSD.  The NDRB determined that the Applicant’s difficulties with aggression, anger disregulation, lack of mood control, and emotional disinhibition, coupled with the medication regimen prescribed were, in fact, contributory and mitigating factors to the alleged misconduct of record.  The NDRB determined that the discharge, as awarded, was inequitable and that relief was warranted.

Issue 2: (Decisional) (Equity) RELIEF WARRANTED.  The Applicant contends that his honorable and meritorious service should be seen as mitigating factors to his post-injury conduct.  Based on a review of the Applicant’s service records, the NDRB determined that the Applicant’s service, prior to his injury in combat, was honorable.  The NDRB determined that the Applicant’s honorable service was a mitigating factor when considering his post-injury conduct.  Based on the preceding paragraphs, the NDRB determined that relief, as requested, was warranted.

Issue 3: (Decisional) (Equity) RELIEF WARRANTED.  The Applicant contends that his narrative reason for discharge should be changed to Secretarial Authority as his injuries resulted in diminished capacity and he was unable to conform to the standards of the Marine Corps any longer.  When reviewing a discharge, the NDRB does consider the extent to which a medical problem might affect an Applicant’s performance and ability to conform to the military’s standards of conduct and discipline.  The NDRB generally does not consider the circumstances surrounding an Applicant’s stated condition, an implied incorrect diagnosis, or the medical treatment given to an Applicant to be of sufficient nature to exculpate the Applicant’s misconduct.  In the issues specific to this case, however, the NDRB found a direct connection between the Applicant’s misconduct and his medical condition.  The Applicant’s record of misconduct began after his injuries sustained in combat and continued throughout competent medical authority treatment.  By unanimous vote, the NDRB determined that the Applicant did suffer from a diminished capacity to conform to the Marine Corps standards of conduct and that relief, as requested, was warranted.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service,  and medical record entries, circumstances unique to this case, and the discharge process, the NDRB determined that the discharge was not equitable.  Therefore, the awarded characterization of service shall change to HONORABLE and the narrative reason for separation shall change to SECRETARIAL AUTHORITY. 

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