ex-, USMC          

Current Discharge and Applicant’s Request

Application Received:  20120202
Characterization of Service Received:  
Narrative Reason for Discharge:  
Authority for Discharge:  MARCORSEPMAN 

Applicant’s Request:	Characterization change to: 
	Narrative Reason change to: COMPLETION OF REQUIRED ACTIVE SERVICE

Summary of Service
Prior Service:
Inactive:	USMCR (DEP)	20031124 - 20040222  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  20040223	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20081117	Highest Rank:  
Length of Service:    Year(s)    Month(s)  25  Day(s)
Education Level:  	AFQT:  54
MOS:  1833
Proficiency/Conduct Marks (# of occasions):   () /  ()	Fitness Reports:  

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

Periods of UA/CONF:  UA:  NONE / CONF:  20080825-20080829, 5 days

NJP:  
- 20070511:	Article  (General Article - through negligence, discharge M4 rifle, causing self-injury in the left leg)
	Awarded:     Suspended:   

SCM:  	SPCM:  	CC:  

Retention Warning Counseling:  
- 20080707:	For your poor decision making ability and your failure to set a good example as a Marine and a noncommissioned officer.

- 20080722:	For your poor decision making ability and your failure to set a good example as a Marine.

NDRB Documentary Review Conducted (date):	20101119
NDRB Documentary Review Docket Number:	MD10-00837
NDRB Documentary Review Findings:		Discharge should be changed to General (Under Honorable Conditions).

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.

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

Applicant’s Issues

1.	The Applicant contends his prescription medications, Post-Traumatic Stress Disorder (PTSD), and Traumatic Brain Injury (TBI) caused his misconduct.
2.	The Applicant contends the punishment for violating Article 86 of the Uniform Code of Military Justice (UCMJ) exceeded the allowable punishment.

Decision

Date:  20120719		Location: Washington D.C.	 Representation: 

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

Discussion

As a result of the Applicant’s claim of PTSD and TBI, 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.  A review of the Applicant’s service record revealed two combat deployments to Iraq.

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 and  non-judicial punishment (NJP) for violation of the UCMJ: Article 134 (General Article - through negligence, discharged M4 rifle causing self-injury).  His record of service also reflected violations of Articles 86 and 112a for which charges were being referred for trial by court-martial.  On 22 October 2008, the Applicant submitted a request for separation in lieu of trial by court-martial.  In the request for discharge, he noted that his counsel had fully explained the elements of the offenses for which he was charged and that he was guilty of the offenses.  He certified a complete understanding of the negative consequences of his actions and that characterization of service could be Under Other Than Honorable Conditions.  His command approved his request and administratively processed him for separation.
 
:  (Decisional) ()  .  The Applicant contends his prescription medications, PTSD, and TBI caused his misconduct.  In determining discharge characterization of service, the Applicant’s conduct forms the primary basis for consideration.  The Applicant’s in-service conduct included a violation of Article 134 (Negligent discharge of a firearm causing self-injury), which was adjudicated at NJP proceedings.  It also included violations of Article 86 and 112a, for which he requested to be discharged from the Marine Corps instead of face trial by court-martial.  The Applicant admitted that he was guilty of the offenses, which was necessary for his request for separation to be approved, but now contends the medication he received following his TBI (which was caused by a fall after an improperly diagnosed anti-anxiety drug) led to his misconduct.  Documentation from the Applicant’s military medical records reflects he was diagnosed with PTSD and Chronic Pain Syndrome while in service.  The NDRB determined these diagnoses, in conjunction with documentation found in his service record, medical record (which was obtained from the Physical Evaluation Board following the hearing), and his testimony, did not support the Applicant’s contention that the effects of his prescribed medications led to his misconduct or was a mitigating factor.  Additionally, the NDRB determined that his PTSD and TBI did not mitigate his misconduct.  Therefore, by a vote of 5-0, the NDRB found that no relief was warranted.  Relief denied.

:  (Decisional) ()  .  The Applicant contends the punishment for violating Article 86 of the UCMJ exceeded the allowable punishment.  The Applicant did not receive NJP, nor was he found guilty and sentenced at a trial by court-martial for violating Article 86.  Therefore, his contention that the punishment he received for the violation was excessive was not valid, because he was never punished.  In addition to the violation of Article 86, he was also charged with violating Article 112a, which was also being referred to special court-martial.  Rather than face trial by court-martial for those charges, the Applicant requested to be administratively separated from the Marine Corps.  His command 

approved his request, therefore, choosing not to take punitive action against him.  Furthermore, 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 was inconsistent with standards of discipline of the Naval Service.  Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Marine Corps.  A preponderance of the evidence reviewed, including the Applicant’s letter dated 22 October 2008 wherein he admits guilt to the offenses, supports the conclusion that his actions were deliberate.  The NDRB concluded that relief based on this issue was not warranted.  Relief denied.
 
Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service, medical and service record entries, and discharge process, the Board found   Therefore, the awarded characterization of service shall   and the narrative reason for separation shall remain In LIEU OF TRIAL BY COURT-MARTIAL. 

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