ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20120306
Characterization of Service Received:  
Narrative Reason for Discharge:  
Authority for Discharge:  MARCORSEPMAN 

Applicant’s Request:	Characterization change to: 
	Narrative Reason change to: GOOD OF THE SERVICE OR UNDER SECRETARIAL AUTHORITY

Summary of Service
Prior Service:
Inactive:	USMCR (DEP)	20061229 - 20070812  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  20070813	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20091109	Highest Rank:  
Length of Service:    Year(s)    Month(s)  27  Day(s)
Education Level:  	AFQT:  57
MOS:  0651
Proficiency/Conduct Marks (# of occasions):   / 		Fitness Reports:  

Awards and Decorations (per DD 214):	Rifle    

NJP:  
- 20091008:	Article  (Absence without leave)
	Article  (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer)
	Awarded:   Suspended:  

SCM:  	CC:  

SPCM:  
- 20090820:	Article  (Failure to obey order or regulation) 
	Article 95 (Resistance, flight, breach of arrest, and escape)
	Article  (General Article, 2 specifications)
	Specification 1: Wrongfully communicate to LCPL a threat to kill him by stating, “I have a knife.  I’m going to get it and come back and kill you.”
	Specification 2: Disorderly conduct
	Sentence: 180 days (20090301-20090822, 175 days)  
	CA Action (20091104):  Sentence is approved and will be executed

Retention Warning Counseling:  

- 20080926:	For violating liberty restriction policy by failing to check in with the Command Duty Officer at 2145, 20080915.

- 20081117:	For losing government ID card in the vicinity of Camp Foster, Okinawa, Japan with complete disregard for operational security. 

- 20091008:	For your long-standing disorder of character and behavior which is of such severity as to interfere with serving adequately in the military service in any capacity which resulted in you being medically diagnosed with a personality disorder.  Specifically, on 20091006, you were diagnosed by CDR W_, Staff Psychiatrist Naval Hospital Camp Lester with a personality disorder.

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 seeks an upgrade to qualify for Department of Veterans Affairs (VA) education and service benefits.
2.	The Applicant seeks a change to his reenlistment code to RE-1. 
3.	The Applicant contends he was coerced into accepting the Separation in Lieu of Trial by Court-Martial (SILT).
4.	The Applicant contends he now suffers from Post-Traumatic Stress Disorder (PTSD) due to his period of incarceration that was a result of his misconduct and should be the basis for an upgrade.	

Decision

Date:  20130206		Location: Washington D.C.	 Representation: 

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

Discussion

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 Board did complete a thorough review of the circumstances that led to  discharge and the discharge process to ensure  discharge met the pertinent standards of equity and propriety.  The Applicant’s record of service included  6105 counseling warnings,   for  of the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave, 1 specification) and Article 91 (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer), and   for  of the UCMJ: Article 92 (Failure to obey order or regulation, 1 specification), Article 95 (Resistance, flight, breach of arrest, and escape, 1 specification), and Article 134 (General Article, 2 specifications).  In October 2009, charges were referred to a second Special Court-Martial, however, the Applicant requested separation in lieu of trial.  The Marine Corps approved the request and discharged the Applicant with an Under Other Than Honorable Conditions for SILT on 9 November 2009.  A review of the Applicant’s records shows that he served for 27 months and was stationed in Japan but did not deploy in support of a contingency operation. 

:  (Nondecisional)  The Applicant seeks an upgrade to qualify for VA education and 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 re-characterization 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.  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.
 
:  (Nondecisional)  The Applicant seeks a change to his reenlistment code to RE-1.  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 Board for Correction of Naval Records 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.

:  (Decisional) ()  .  The Applicant contends he was coerced into accepting the Separation in Lieu of Trial by Court-Martial.  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.  There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that the government coerced him into accepting separation in lieu of trial by court-martial.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.  Per regulations, to attain approval for a SILT request, service members must have been afforded the opportunity to consult with a qualified counsel 

and submit a written statement.  They must also fully understand the elements of the offense(s) for which they were charged, and they must admit their guilt.  They further certify a complete understanding of the negative consequences of their actions and that characterization of service could be Under Other Than Honorable Conditions, which might deprive them of virtually all veterans benefits based upon their current enlistment.  Seeing that the Applicant requested separation in lieu of trial by court-martial and finding nothing in the records to show the Applicant was not responsible for his actions or should not be held accountable for his misconduct, the NDRB determined his discharge was proper and equitable and an upgrade is not warranted.  Relief denied.

Issue 4:  (Decisional) ()  .  The Applicant contends he now suffers from PTSD due to his period of incarceration that was a result of his misconduct and should be the basis for an upgrade.  The Applicant submitted a detailed psychiatric diagnostic evaluation conducted on 14 April 2011 by an MD who is Board Certified in Psychiatry.  In the evaluation, the psychiatrist wrote, “[Applicant] meets DSM-IV diagnostic criteria for [1] PTSD, severe and chronic with current self-medication by alcohol and THC, and [2] Depression Not Otherwise Specified, severe and chronic, probably secondary to PTSD.  The proximate causes for the above diagnoses appear to be [1] the psychological trauma experienced during a 7-month incarceration in solitary confinement for alleged felony attempted murder…and [2] psychological harassment and threats of physical harm by members of his Marine unit after release from the Brig, and [3] the General, Other Than Honorable Discharge from the Marine Corps….”  The Applicant’s record reflects a period of pre-trial confinement from 1 March - 22 August 2009.  On 4 June 2009, under the authority of the Manual for Courts Martial U.S. Rule 706, a mental health board convened to inquire into the mental responsibility of the Applicant prior to his first Special Court-Martial.  The board concluded the Applicant “did not have a severe mental disease or defect at the time of the alleged conduct” and “is not currently suffering from a mental disease or defect rendering him unable to understand the nature of the judicial proceedings against him or cooperate intelligently in his defense.”  The Applicant was convicted at a Special Court-Martial on 20 August 2009 for violating UCMJ Articles 92, 95, and 134 and was sentenced to reduction in rank to E-1, forfeiture of pay, and confinement.  He was released back to his unit on 22 August 2009 based on time served.  On 21 October 2009, the Applicant was notified of charges being referred to a second court-martial for violation of UCMJ Articles 92, 123, and 134 as a result of him allegedly and wrongfully using Spice and possessing drug paraphernalia on or about 14 October 2009, falsely signing initials of a Staff Sergeant to a Restraint Muster Record on or about 10 October 2009, and breaking restriction on diverse occasions between on or about 10 October - 12 October 2009.  Based on the referral of charges, the Applicant requested separation in lieu of trial by court-martial, a request that was approved and resulted in his Under Other Than Honorable Conditions discharge.  After reviewing the Applicant’s record of service, his statement to the NDRB, the 14 April 2011 civilian mental health evaluation, which concluded PTSD was due to a 7-month pre-trial confinement, psychological harassment and threats from fellow Marines after his release from the Brig, and his Under Other Than Honorable Conditions discharge, the NDRB determined his post-service diagnosis of PTSD did not mitigate his misconduct.  The Applicant was afforded all due process rights and was properly and equitably discharged after he requested separation in lieu of trial by court-martial.  The NDRB found nothing to suggest that he was not responsible for his actions and should not be held responsible for his misconduct.  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 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