ex-, USMC       

Current Discharge and Applicant’s Request

Application Received:  20111230
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)	19990805 - 19991004  	Active:	   19991005 - 20031004 HON
	USMCR (IRR)	20031005 - 20040203 HON	        	USMC   20040204 - 20070725 HON 

Period of Service Under Review:
Date of Current Enlistment:  20070726	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20100127	Highest Rank:  
Length of Service:    Year(s)    Month(s)  01  Day(s)
Education Level:  	AFQT:  40
MOS:  0811/0911
Fitness Reports:  

Awards and Decorations (per DD 214):	Rifle  (4th Awd), Pistol ,  (3rd Awd), , ,  (2),   (3rd Awd), , , , , LoA, CoC

Periods of CONF:  

NJP:  

- 20081023:	Article  (Drunken or reckless operation of a vehicle) 
	Awarded:   Suspended:  

- 20091130:	Article  (Absence without leave - 20091112 (1 day) - IHCA)
	Awarded:   Suspended:   (1 month)

SCM:  	SPCM:  	CC:  

Civilian Arrest:

- 20090829:	Offense:  Violation of California Penal Code Sections 228A (F) Oral Copulation, 664-261 (A) (4) Attempted Rape, 664-289 (D) Attempted Digital Penetration, and 243.4 (E) (1) Sexual Battery
	Sentence: Dismissed
- 20091111:	Offense:  Violation of California Penal Code 243 (e) (1) Domestic Battery (Slapping with an open hand, in-public)
	Sentence:  Not found in record

Retention Warning Counseling:  

- Undated:	For Article 111, you physically controlled a vehicle with a blood alcohol content of 0.11, which exceeds the legal limit of 0.08 of California DUI Laws.

- 20091118:	For on 20090829, you were detained by the San Diego County police department on the charge of assault with intent to commit rape, in that at 0250 on 20090829 you were found undressed and trying to force oral copulation upon a female that was staying in your apartment.  (Charges dismissed by State Authorities)

- 20091118:	For on 20091112, you were detained by the Vista County police department on the charge of domestic battery, in that you had a verbal altercation with a female and then struck her in the face. 

- 20091130:	For Article 86, Absent without leave on or about 20091112.

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 6210, MISCONDUCT of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), 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.

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 120 (Rape, Wrongful sexual contact), 128 (Assault).  

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

Applicant’s Issues

1.  The Applicant contends that his misconduct of record was the result of stress from depression and anxiety related to Post-Traumatic Stress Disorder (PTSD), coupled with spousal infidelity and the extensive demands of Drill Instructor Duty.

Decision

Date:  20120510	                Location: Washington D.C.    Representation: 
			     - Wounded Warrior Project	

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 directly related to his combat service in Iraq.  As such, in accordance with U.S. Code, Title 10, Section 1553 (d) (1), the NDRB 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 two deployments as an Infantryman in the Al-Anbar Province of Iraq (Fallujah/Ramadi) while conducting combat operations in support of Operation Iraqi Freedom.  The military service record further documents that he was awarded the Combat Action Ribbon and Navy and Marine Corps Achievement Medal 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 Applicant identified one decisional issue for the NDRB’s consideration related to the equity of the characterization of his service; 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 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 drug use (marijuana).  The Applicant enlisted on an initial contract for 4 years under an Infantry Option guarantee; upon completion of his enlistment he was discharged under Honorable conditions for completion of his required active duty service.  The Applicant reenlisted approximately 4 months later on another 4 year enlistment.  Having completed this enlistment honorably, the Applicant executed an immediate reenlistment while in Iraq commencing the current enlistment period under review.  He was discharged after completing 2 years and 6 months of his enlistment contract.  The Applicant’s record of service during this current enlistment period reflects four retention-counseling warnings and two nonjudicial punishment proceedings for violations of the Uniform Code of Military Justice (UCMJ): Article 86 (Absent without leave - unauthorized absence, 1 day) and Article 111 (Drunken operation of a motor vehicle).  Additionally, the Applicant’s service record documents two civilian arrests for sexual misconduct (charges dismissed post-discharge) and domestic battery (adjudication unknown).

Issue 1: (Decisional) ()  .  The Applicant contends that his misconduct of record was the result of his inability to properly deal with the depression and anxiety resulting from undiagnosed PTSD that was exacerbated by spousal discord and divorce and duty as a Drill Instructor.  The NDRB reviewed the Applicant’s separation proceedings; the Applicant was discharged in accordance with paragraph 6210.6 the Marine Corps Separation and Retirement Manual (MARCORSEPMAN) - Commission of a Serious Offense.  The Applicant was notified - in writing - of the Command’s intent to process him for administrative separation due to his civilian charges.  The basis for the discharge was the documented charges for sexual misconduct and domestic violence.  When notified of administrative separation processing using the  notification procedure, the Applicant waived  rights to consult with a qualified legal defense counsel, to request that a board hearing be convened, or to provide a written statement for consideration by the Separation Authority.  The Applicant was advised that the least favorable characterization of his service at discharge was Under Other Than Honorable Conditions and that characterization was what the Command was recommending he be awarded.  After review by the Staff Judge Advocate, the Separation Authority determined that the evidence of record was sufficient in law and fact to support the proposed discharge action.  He reviewed the chain of command’s recommendations regarding characterization of service.  As such, the Separation Authority directed the Applicant be discharged with an Under Other Than Honorable Conditions characterization of service for Misconduct (Commission of a Serious Offense) pursuant to paragraph 6210.6 of the MARCORSEPMAN. 

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 from the Naval Service in order to maintain proper order and discipline.  The charges specified against the Applicant for prosecution by state authorities were serious offenses per the UCMJ: punishable by a punitive discharge and confinement, if adjudicated by a Special or General Court-Martial.  Specific to the Applicant, paragraph 6210.6 of the MARCORSEPMAN provides a basis for separation of a Marine by the commission of a serious military or civilian offense under the following circumstances: (1) when the specific circumstances of the offense warrant separation, and (2) a punitive discharge would be authorized for the same or a closely related offense under the UCMJ.  This provision of the MARCORSEPMAN further specifies that a military or civilian conviction is not required for discharge.  The Applicant’s command opted to allow the civilian prosecution to complete its action and, based on a preponderance of the evidence, sought administrative discharge procedures in the interim.  The Separation Authority determined that a preponderance of the evidence presented (State Superior Court indictment) proved the acts or omissions alleged in the notification letter; specifically, that the Applicant had committed misconduct due to the commission of serious offenses.  Since the charges and specifications alleged against the Applicant warranted a punitive discharge, the recommendation and process for discharge by administrative separation was proper and was in accordance with the guidance contained in paragraph 6210.6 of the MARCORSEPMAN.  Therefore, the NDRB determined that the characterization of service is accurate and relief is not warranted based on issues of propriety.

The NDRB requested and received the Applicant’s service medical record and VA medical treatment records.  While in the active military service, the Applicant was treated for alcohol abuse and a suicide attempt.  Within months of discharge, the Applicant was evaluated by the VA and was diagnosed with PTSD.  The Applicant received a disability rating of 70% due to PTSD (chronic/severe), originally claimed as anxiety and depression.  After an in-depth review of the Applicant’s service record and his in-service and post-service mental health treatment records, the NDRB determined that the contention of PTSD existing in-service, prior to the misconduct of record, was established.  Given the Applicant’s combat deployment history, his in-service alcohol and spousal issues, coupled with his deteriorating work performance and attempted suicide, the NDRB determined that the Applicant’s PTSD and associated symptoms were mitigating factors in his misconduct and that some form of relief was warranted.  When the quality of a member’s service has met the standards of acceptable 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 discharge 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.  The Applicant’s record clearly documents his acceptable conduct while deployed in a combat zone; for this service, he received personal awards and accolades and warranted the awarding of an Honorable discharge at the completion of his first two enlistments.  However, the record of service does not document service so meritorious that it would completely overcome the Applicant’s disregard for good order and discipline.  Given the facts of the record, a detailed review of the mental health treatment records, and the Applicant’s combat service, the NDRB determined that the Applicant’s conduct, which forms the primary basis for determining the character of his service, was honest and faithful.  However, significant negative aspects of the member’s conduct did still outweigh the overall positive aspects of his record.  As such, given the facts and circumstances unique to this case, the NDRB determined that partial relief was warranted based on equitable grounds.  The NDRB voted 5-0 to upgrade the characterization of service at discharge to General (Under Honorable Conditions), and, by a vote of 3-2, that the narrative reason for separation be changed to Secretarial Authority.  Partial relief warranted.  Full relief to Honorable was not granted due to the serious nature of the misconduct.

With respect to the Applicant’s request to be medically retired from the Marine Corps, the NDRB does not have the authority to do this.  The Applicant may petition the Board for Correction of Naval Records, 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 for further review using DD Form 149.  Their website can be found at http://www.donhq.navy.mil/bcnr/bcnr.htm. 

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   but 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 for additional information.  

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