ex-, USMC 

Current Discharge and Applicant’s Request

Application Received:  20110517
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)	20031002 - 20031026  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  20031027	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20090901	Highest Rank:  
Length of Service:    Year(s)    Month(s)  05  Day(s)
Education Level:  	AFQT:  50
MOS:  0351
Proficiency/Conduct Marks (# of occasions):   (13) /  (16)	Fitness Reports:  

Awards and Decorations (per DD 214):	Rifle         

Periods of UA: 20060202 - 20060711 (159 days); 20060724 - 20070322 (241 days)

Lost Time (per DD 214): 20071212 - 20071226 (15 days)

NJP:  

- 20040615:	Article  (UA 0700, 20040524 - 0600, 20040603, 10 days)
	Awarded:    Suspended:  

- 20060109:	Article  (Failure to go to appointed place of duty)
	Specification 1: 0600, 20051217 formation
	Specification 2: 20051227 formation
	Awarded:     Suspended:  

SCM:  

- 20071227:	Article  (UA 20070521 - 20071212, 205 days)
	Sentence:    (20070327 - 20070510, 44 days)

SPCM:  	CC:  

Retention Warning Counseling:  

- 20040510:	For being late returning from the past two 96-hour passes.  The next time I am late from returning from any Holiday I will be charged with UA.

- 20050525:	For your lack of maturity.  Conduct of this nature is totally unacceptable and will not be tolerated.  Your immaturity allows for poor judgment and discipline on your part and discredit to the United States Marine Corps as an organization.

- 20080107:	For unauthorized absence from 20070521 to 20071212.

- 20090805:	On 20090209 the Sports Medicine Clinic determined that your Lumbar Facet Syndrome/Spondylosis/ Lumbago was classified as a condition, not a physical disability per para 6203.2 of the MARCORSEPMAN.

Administrative Corrections to the Applicant’s DD 214

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

	  “CONDITION NOT A DISABILITY”

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.  Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 1 September 2001 and Present, 
paragraph 6203, CONVENIENCE OF THE GOVERNMENT.

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.	The Applicant contends Post-Traumatic Stress Disorder (PTSD) mitigates his misconduct.  
2.	The Applicant’s immediate chain of command recommended he receive an Honorable characterization of service upon separation.
3.    The traditions of the Marine Corps warrant an upgrade in the interest of caring for their own.  

Decision

Date:  20110908		Location: Washington D.C.	 Representation: 

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

Discussion

With the Applicant’s claim of Post-Traumatic Stress Disorder, 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 Applicant’s record of service included  6105 counseling warnings,   for  of the Uniform Code of Military Justice (UCMJ): Article  (Unauthorized absence, : ten days and missing formation, two specifications), and   for  of the UCMJ: Article  (, : 205 days, apprehended).  Additionally, the Applicant had two other periods of unauthorized absence for 159 days (surrendered) and 241 days (apprehended), which were not adjudicated.  Based on the diagnosis and recommendation of competent medical authority,   command administratively processed  for separation.  When notified of administrative separation processing, the Applicant   rights to consult with a qualified counsel and submit a written statement.  The Applicant was not entitled to an administrative board.

:  (Decisional) ()  .  The Applicant contends PTSD mitigates his misconduct.  The Applicant’s military medical record contained no clear diagnosis of PTSD.  It is apparent, however, that he was examined by mental health professionals; a medical officer’s note refers to a diagnosis of Adjustment Disorder with disturbance of mood and conduct.  The Applicant submitted documentation from the Department of Veterans Affairs (VA) showing he has been awarded a disability rating for PTSD.  The NDRB recognizes the Applicant likely suffered from PTSD following his combat tour in Iraq.  However, there is no indication his mental condition was of such severity as to render him incapable of abiding by Marine Corps rules and regulations.  The Applicant’s misconduct included four periods of unauthorized absence totaling over 600 days.  It is apparent the Applicant’s command was unusually lenient and carefully considered his combat record as well as his mental state by not pursuing a Special Court-Martial with the prospect of extensive confinement and a Bad Conduct Discharge or an administrative discharge with an Under Other Than Honorable Conditions characterization of service for misconduct.  The NDRB found the Applicant’s command appropriately considered mitigation for his mental condition and meritorious combat record in the assignment of his characterization of service.  The NDRB determined an upgrade would be inappropriate.  Relief denied.

:  (Decisional) ()  .  The Applicant contends his immediate chain of command recommended he receive an Honorable characterization of service upon separation.  The record did not support the Applicant’s contention.  The NDRB was unable to locate, and the Applicant did not provide, documentary evidence to support this issue or to overcome the NDRB’s presumption of regularity in the conduct of governmental affairs.  Regardless of the recommendation of his immediate chain of command, the Separation Authority is responsible for making the final determination of characterization.  The record is mute regarding the Separation Authority’s rationale for the Applicant’s characterization of 

service.  However, it is evident the Applicant’s numerous and extremely long periods of UA were instrumental in deciding his characterization.  Misconduct of this magnitude would typically be adjudicated at Special Court-Martial, which would have resulted in a Bad Conduct Discharge, or, at a minimum, through an administrative discharge for misconduct that would have resulted in an Under Other Than Honorable Conditions characterization of service.  It is apparent to the NDRB that the Applicant’s command chose to display unusual leniency by not pursuing a Special Court-Martial or separation for misconduct due to the Applicant’s outstanding combat record and mental health issues.  An upgrade would be inappropriate.  Relief denied.

:  (Decisional) ()  .  The Applicant contends the traditions of the Marine Corps warrant an upgrade in the interest of caring for their own.  The record shows the Applicant’s command was extremely lenient in the Applicant’s case.  Offenses of this frequency and severity typically result in Special or General Court-Martial with sentences including a Bad Conduct Discharge and much longer periods of confinement than the 15 days the Applicant received at Summary Court-Martial.  The NDRB found the Applicant’s contention to be wholly without merit.  The tradition of the Marine Corps to take care of their own includes maintaining the high professional standards established by the thousands of Marines who have served from 1775 to the present.  It is apparent the Applicant’s command went to great lengths to take care of him by not pursuing a punitive discharge or even separation for misconduct in an unusual display of mercy in consideration of the Applicant’s outstanding combat record and mental health issues.  The NDRB determined the Separation Authority upheld the traditions of the Marine Corps and took great care to ensure equity for the Applicant, who committed numerous instances of serious misconduct with his unauthorized absences.  Relief denied.

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  .  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, 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