ex-, USMC     

Current Discharge and Applicant’s Request

Application Received:  20111108
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)	20060731 - 20070522  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  20070523	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20101007	Highest Rank:  
Length of Service:    Year(s)    Month(s)  15  Day(s)
Education Level:  	AFQT:  35
MOS:  0311
Proficiency/Conduct Marks (# of occasions):   () /  ()	       Fitness Reports:  

Awards and Decorations (per DD 214):	Rifle  (2), Pistol , , ACM, , , ,  (ISAF Afghanistan)

Periods of CONF:  NFIR
Periods of Time Lost:  20090907 - 20090921 (15 days); 20091029 - 20100127 (91 days)

NJP:  

- 20091029:	Article  (Absence without leave - Unauthorized Absence, failure to report to required place of duty for his departure to Coronado)
	Awarded:     Suspended:  

SCM:  		SPCM:  		CC:  

Retention Warning Counseling:  1

- 20091029:	For misconduct, specifically my NJP for violation of Article 86 held on 20091029.

Administrative Corrections to the Applicant’s DD 214

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

	  “2007  05  23”

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.  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.  U.S. Code, Title 10, Section 1553 (d).

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 at discharge in order to facilitate reenlistment in the Armed Forces.

Decisional issues: The Applicant contends that his misconduct of record was the result of stress from depression and anxiety related to Post-Traumatic Stress Disorder (PTSD) and Traumatic Brain Injury (TBI), diagnosed in-service, and warrants consideration as extenuating and mitigating factors to his discharge and the characterization of service he received.

Decision

Date:  20120322              	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 personal statement; the Applicant stated that he was suffering from PTSD and TBI directly related to his combat service in Afghanistan.  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 Applicant’s service record documents a deployment as an Infantryman in the Helmand Province of Afghanistan while conducting combat operations in support of Operation ENDURING FREEDOM (OEF).  The military service record further documents that he was awarded the Combat Action Ribbon for his actions while engaged in direct combat operations against enemy forces.

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 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 both equity and propriety.  The Applicant’s enlistment record reflects entry into military service at age 18 with a waiver to enlistment and induction standards for a pre-service law violation of a serious offense.  He enlisted under an Infantry Option guarantee contract for 4 years of active duty military service.  The Applicant’s record of service documents one 6105 retention-counseling warning and one nonjudicial punishment proceeding for violation of Article 86 (Absent without leave - failure to be at appointed place of duty) of the Uniform Code of Military Justice (UCMJ).  Additionally, the Applicant’s service record documents a period of unauthorized absence from his unit from 29 October 2009 to 27 January 2010 - a violation of Article 86 (Absent without leave - in excess of 30 days) of the UCMJ.  The NDRB reviewed the Applicant’s separation proceedings; the Applicant was discharged in accordance with paragraph 6419 of the Marine Corps Separation and Retirement Manual (MARCORSEPMAN) (separation in lieu of trial by court-martial) and was afforded all his administrative rights that pertain.  To warrant separation in lieu of trial by court-martial, the Applicant must have requested separation - in writing - for the good of the service, to escape charges that have been preferred against the Applicant for referral to trial by a Special Court-Martial or above.  One hundred and six days of unauthorized absence is serious misconduct, which warrants a punitive discharge if adjudicated and awarded at trial by Special or General Court-Martial.  The request for separation must contain certain basic requirements - which were required to be satisfied - before receiving approval by the Separation Authority.  In the Applicant’s request, he must have clearly affirmed that his rights were explained to him - thoroughly - to include his right to consult with a qualified defense counsel.  Furthermore, the Applicant must admit his guilt to the charges, as preferred against him, and further certify that he had a complete understanding of the negative consequences of his actions, the narrative reason for his separation, and the likely characterization of his service upon separation - Under Other Than Honorable Conditions.  The Applicant must further acknowledge that if discharged with an OTH, it might deprive him of virtually all veterans benefits.

(Non-decisional Issue)  The Applicant seeks an upgrade in the characterization of his service at discharge in order to facilitate reenlistment in the Armed Forces.  There is no requirement, or law, that grants re-characterization solely on the issue of facilitating reenlistment in the Armed Forces.  Moreover, the NDRB has no jurisdiction or authority over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces and is not authorized to change a reenlistment code.  A request for a waiver may be submitted during the processing of a formal application for reenlistment through a recruiter; neither a less than fully honorable discharge, nor an unfavorable "RE" code is, in itself, a bar to reenlistment.  Only the Board for Correction of Naval Records can make changes to reenlistment codes.

(Decisional Issue) ()  .  The Applicant contends that his misconduct of record was the result of stress from depression and anxiety related to PTSD and TBI, diagnosed in-service, and warrants consideration as extenuating and mitigating factors to his discharge and the characterization of service he received.
  
Propriety - The Applicant absented himself from his unit for a period of 106 days, a violation of Article 86 of the UCMJ.  Absence in excess of 30 days is a serious offense, punishable by up to one and a half years of confinement and a punitive discharge (Bad Conduct Discharge/Dishonorable Discharge) if adjudged at a trial by Special or General Court-Martial.  Upon return to military custody, the Applicant had charges preferred on him for trial by Special Court-Martial.  The Applicant requested administrative separation for the good of the service in order to avoid the punitive affects of the trial by court-martial; he consulted with, and was represented by, an appropriately credentialed legal defense counsel throughout the process.  The request for separation satisfied all the elements established by the MARCORSEPMAN; as such, the command accepted the Applicant’s request.  The Applicant was separated properly from the Naval Service in accordance with chapter 6419 of the MARCORSEPMAN.  Accordingly, relief based on propriety is not warranted.
	
Equity - The Applicant contends that his misconduct of record was the result of stress from depression and anxiety related to PTSD and TBI, diagnosed in-service.  The government enjoys a presumption of regularity in the conduct of its affairs; the Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue.  The NDRB requested the Applicant’s medical record, but the VA was unable to locate them.  However, after an in-depth review of the Applicant’s documentation (to include portions of his medical treatment record), his service record, and discharge physical, the contention of PTSD and TBI was established as existing in-service, prior to the misconduct of record.  After a careful review of the Applicant’s combat deployment history, in-service mental health issues, diagnosed PTSD and TBI, and the unique issues related to this discharge action, the NDRB determined the Applicant’s PTSD and associated symptoms were mitigating and contributory factors to his misconduct of record.

Characterization of service at discharge is recognition of a Marine’s performance and conduct throughout a period of enlistment and is not necessarily dependent upon the narrative reason for separation.  When the quality of a member’s service has met the standards of accepted conduct and performance of duty for military personnel, it is appropriate to characterize that service under Honorable conditions.  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.  However, an Under Other Than Honorable Conditions characterization of service 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.  Given the facts of the record and the information provided by the Applicant, the NDRB determined that the Applicant’s conduct, which forms the primary basis for determining the character of his service, was honest and faithful, but that significant negative aspect of the member’s conduct did outweigh the overall positive aspects of his record.  Furthermore, the NDRB determined that mitigation for unique circumstance in the case was warranted and appropriate.  As such, given the facts and circumstances unique to this case, the NDRB determined relief based on equitable grounds is warranted.  The NDRB voted 5-0 to change the characterization of service at discharge to General (Under Honorable Conditions), but that no change to the narrative reason for separation is warranted.  Relief granted.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service,  record entries, and discharge process, the NDRB determined that   Therefore, the awarded characterization of service shall  , however, the narrative reason for separation shall remain IN LIEU OF TRIAL BY COURT MARTIAL.  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), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 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