ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20120319
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)	20011129 - 2002513  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  20020514	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20050805	Highest Rank:  
Length of Service:    Year(s)    Month(s)  22  Day(s)
Education Level:  	AFQT:  53
MOS:  0331
Proficiency/Conduct Marks (# of occasions):   () /  ()	Fitness Reports:  

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

Periods of UA/CONF:  UA:  20031205-20050527 (539 days)		 CONF:  

NJP:  
- 20030808:	Article  (Failure to obey order or regulation, wrongfully wearing an earring)
	Awarded:    Suspended:  

Page 11 Counseling:  1
- 20021210:	For Illegal Drug Involvement: amphetamine usage (Adderall) (NAVDRUGLAB 042112Z Dec 02).

SCM:  		SPCM:  		CC:  		Retention Warning Counseling:  

NDRB Documentary Review Conducted (date):	MD06-00776
NDRB Documentary Review Docket Number:	20070308
NDRB Documentary Review Findings:		Proper as issued and that no change is warranted.

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.	Applicant contends documented in-service mental health issues mitigate the misconduct for which he was separated.
2.	Applicant contends his post-service achievements warrant consideration for a discharge upgrade.

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 Post-Traumatic Stress Disorder (PTSD), 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 Applicant was a combat veteran of Operation Iraqi Freedom, having served in a combat deployment in Iraq in 2003.

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 identified two decisional issues for the Board’s consideration.  The Board completed a thorough review of the circumstances that led to his discharge and the discharge process to ensure his discharge met the pertinent standards of equity and propriety.  The Applicant’s record of service included one Page 11 counseling for illegal use of amphetamine (Adderall) (as evidenced by NAVDRUGLAB msg 042112Z Dec 2002) and one  for  of the Uniform Code of Military Justice (UCMJ): Article 92 (Failure to obey an order or regulation, wore an earring).  There was no evidence of 6105 retention counseling warnings or trial by courts-martial.  The record did reveal the Applicant was referred for a mental health evaluation in January 2003 by Battalion Aid Station (BAS) medical staff and the Battalion Chaplain as a result of a suicide ideation.  On 3 January 2003, the Applicant received a mental health evaluation from a Navy staff psychologist that resulted in a diagnosis of Personality Disorder Not Otherwise Specified (NOS) with Immature Traits, and a recommendation for expeditious administrative separation from the Marine Corps.  The Applicant’s command, after considering the Applicant’s performance to date and his potential for further service, opted to retain him in the Marine Corps.  The Applicant subsequently deployed to Iraq and served in combat operations from January-June 2003.  On 5 December 2003, the Applicant departed on unauthorized absence (UA) and remained so until he turned himself into military authority on 27 May 2005, a period of 539 days.  Upon his surrender and return to military authority, he was referred for trial by Special Court-Martial for violation of UCMJ Article 86 (Absence without leave).  After consultation with qualified counsel, on 11 July 2005, the Applicant submitted a request for separation in lieu of trial by court-martial.  In the request, the Applicant, in exchange for pleading guilty to the Article 86 offense, offered to accept administrative separation with the least favorable characterization of service Under Other Than Honorable Conditions, thereby avoiding a possible conviction and punitive discharge via Special Court-Martial.  The command accepted the Applicant’s request and the Separation Authority (Commanding General, Marine Corps Base, Camp Lejeune, NC) subsequently directed that the Applicant be administratively separated with an Under Other Than Honorable Conditions discharge on the basis of Separation in Lieu of Trial by Court-Martial.  The Applicant was discharged as directed on 5 August 2007. 

Issue 1:  (Decisional) ()  .  The Applicant contends his discharge characterization was inequitable as documented by in-service mental health issues that mitigate the misconduct for which he was separated.  On 3 January 2003, the Applicant received a mental health evaluation from a Navy staff psychologist that resulted in a diagnosis of Personality Disorder NOS with Immature Traits, and a recommendation for expeditious administrative separation from the Marine Corps.  The Applicant’s command, after considering the Applicant’s performance to date and his potential for further service, opted to retain him in the Marine Corps.  The Applicant subsequently deployed to Iraq and successfully served in combat operations from March - June 2003.  The NDRB conducted a detailed analysis of the Applicant’s medical and service 

records.  Combined with the extensive testimony and documentary evidence provided at the personal appearance hearing, the Board found that the Applicant’s issue warranted partial relief based on equity.  Though the NDRB did not believe PTSD offered any mitigation to the Applicant’s subsequent extensive UA period, the NDRB did determine that his serious personality disorder, combat service, and circumstances unique to this case did warrant relief.  Accordingly, the NDRB determined the Applicant’s discharge shall be changed to General (Under Honorable Conditions).  Relief warranted.

:  (Decisional) ()  .  The Applicant contends his post-service achievements warrant consideration for a discharge upgrade.  The NDRB considers post-service conduct in order to determine if the misconduct committed during active duty was indicative of the Applicant’s character or an aberration.  However, there is no law or regulation that provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service.  Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question.  The Applicant provided personal written statements, education and training documentation, university transcripts, community service and employment verification, and marriage and birth certificates as evidence of post-service accomplishments.  Although the Applicant’s efforts to improve his life are noteworthy, completion of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case by case basis.  After careful consideration of all the available evidence, the Board determined that this issue did not provide a basis for which relief could be granted.  Relief denied.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service,  and medical record entries and the separation in lieu of trial discharge process, the Board found the discharge was proper and equitable at the time of discharge.  However, based on the considerable service and medical record documentary evidence, combined with significant personal appearance hearing testimony provided by the Applicant and his witness, the Board determined that the awarded characterization of service shall  GENERAL (UNDER HONORABLE CONDITIONS) and the narrative reason for separation shall remain IN LIEU OF TRIAL BY COURT MARTIAL.  The Applicant is not eligible for any further reviews from the NDRB.  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.

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