ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20130521
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)	19960401 - 19960617  	Active:	 19960618 - 20010305 
				 20010306 - 20050304 

Period of Service Under Review:
Date of Current Enlistment:  20050305	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20080114	Highest Rank:  
Length of Service:    Year(s)    Month(s)  10  Day(s)
Education Level:  	AFQT:  32
MOS:  6092
Proficiency/Conduct Marks (# of occasions):  0.0 () / 0.0 ()	Fitness Reports:  

Awards and Decorations (per DD 214):	Rifle  (3)  (2)    (2)  (3)   LoA (2) MM

Periods of UA:  

NJP:   	SCM:  		CC:  	Retention Warning Counseling:  

SPCM:  

- 20070425:	Article  (Wrongful use, possession, etc. of controlled substances, 3 specifications)
	Specification 1:  On or about 21 October 2006, wrongfully use cocaine
	Specification 2:  On or about 22 October 2006, wrongfully use marijuana
	Specification 3:  On or about or between 16 February 2007 and 20 February 2007, wrongfully use crystal methamphetamine
	Article  (General Article, indecent exposure)
	Sentence:  180 days (20070223-20070507, 74 days)  

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:	

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

Applicant’s Issues

1.	The Applicant seeks clemency based upon his prior honorable enlistment periods.
2.	The Applicant seeks clemency because he agreed to accept a pretrial agreement with a Bad Conduct Discharge (BCD) to get out of solitary confinement.
3.	The Applicant contends he went past his end of active service (EAS) without pay.
4.	The Applicant contends a review board for discharged service members with diagnosed Post-Traumatic Stress Disorder (PTSD) or Traumatic Brain Injury (TBI) must include a physician, clinical psychologist, or psychiatrist.

Decision

Date:  20131219		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 inference of PTSD or 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.  The Applicant’s service record documents completion of deployments to Kuwait in support of Operation SOUTHERN WATCH from April to June 2001 and Kyrgyzstan in support of Operation ENDURING FREEDOM from April to September 2002.
 
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.  With respect to a discharge adjudged by a court-martial case, 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.  In response to the Applicant’s clemency request, relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts.  The Applicant’s record of service included   for  of the UCMJ: Article 112a (Wrongful use, possession, etc. of controlled substances, 3 specifications) and Article 134 (General Article, indecent exposure, 1 specification).  The Applicant did not have a pre-service drug waiver and acknowledged  complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 31 March 1996.  Based on the Applicant’s conviction at a Special Court-Martial, he was confined and discharged with a Bad Conduct Discharge.

:  (Decisional) ()  .  The Applicant seeks clemency based upon his prior honorable enlistment periods.  Each period of enlistment is an independent obligation and characterization is determined for that specific period of time.  The Applicant’s characterization of service was awarded as part of a sentence adjudged at a Special Court-Martial and took into consideration the nature of his offenses, his performance of duty and conduct during the current enlistment, military awards, service length, grade, aptitude, and physical and mental condition.  The Special Court-Martial sentence was awarded after reviewing all evidence presented by both the trial and defense counsels to include a psychiatric evaluation conducted while the Applicant was confined on 6 April 2007.  The record of this medical evaluation reveals that the Applicant confessed that he had ongoing use of crystal methamphetamine since he was in high school.  In this session, he also admitted to in-service use of cocaine, marijuana, and LSD recreationally since 1995.  This evaluation further indicated the Applicant had been given the opportunity to initiate outpatient treatment and attend Narcotics Anonymous and Alcoholics Anonymous meetings but chose not to do so.  The Applicant did not have a prior service drug waiver and the omission of this information at the time of enlistment could have formed grounds for separation for Fraudulent Enlistment had his prior service drug use been discovered prior to his misconduct.  The Applicant’s case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency.  The NDRB found the evidence of record did not contain sufficient mitigating or extenuating factors to offset the seriousness of the offenses.  Given the nature of the offenses committed, the grade and time in service, and the frequency of his admitted in-service misconduct, the awarded characterization was warranted.  Relief denied.

:  (Decisional)  ()  .  The Applicant seeks clemency because he agreed to accept a pretrial agreement with a BCD to get out of solitary confinement.  In submitting his pretrial agreement, the Applicant noted that his counsel had fully explained the elements of the offenses for which he was charged and that he was guilty of those offenses.  He certified a complete understanding of the negative consequences of his actions and that characterization of service could be a Bad Conduct Discharge, confinement for up to six months, reduction to E-1, and forfeiture of two-thirds pay for six months.  The Applicant’s 10 April 2007 psychiatric evaluation stated “the accused has sufficient mental capacity to understand the nature of the proceedings and to conduct/cooperate intelligently in his defense.”  There is nothing in the record that shows the Applicant was under undue pressure to enter into a pretrial agreement or admit guilt to crimes he did not commit.  During his trial, the Applicant was given the opportunity to change his pleas and the military judge ensured the Applicant understood what his guilty pleas meant in detail and that he understood and fully admitted his guilt.  If the Applicant felt he was mistakenly charged with a crime, it was his obligation to contest those charges at the time they were made.  In accordance with Secretary of the Navy Instruction 5420.174D of 22 December 2004, relevant and material facts as stated in a court-martial are presumed by the NDRB to be established facts.  As such, matters of propriety related to the conduct of a punitive court-martial (e.g., Special Court-Martial) are addressed through the appellate review process by the Navy-Marine Corps Court of Criminal Appeals or through further petitioning for a review by the Court of Appeals of the Armed Forces.  The Applicant’s appellate rights statement and certification of his acknowledgment of those rights, which detail this process, are appended to the verbatim record of trial by court-martial.  In the Applicant’s case, the Navy-Marine Corps Court of Criminal Appeals reviewed the case and affirmed the decision.  Relief denied.

Issue 3:  (Decisional) (Clemency)  RELIEF NOT WARRANTED.  The Applicant contends he went past his EAS without pay.  The NDRB did not find this issue as grounds for an upgrade.  If the Applicant believes he was not fully paid, he can submit this issue to the Board for Correction of Naval Records using DD Form 149.  Relief denied.

Issue 4:  (Decisional) ()  .  The Applicant contends a review board for discharged service members with diagnosed PTSD or TBI must include a physician, clinical psychologist, or psychiatrist.  In reviewing the Applicant’s case, the NDRB included a Navy psychiatrist since the Applicant deployed in support of contingency operations and despite providing no proof of a PTSD or TBI diagnosis.  The NDRB did not find any reference to a medical diagnosis of PTSD or TBI in the Applicant’s service record to support such a claim, and the Applicant did not provide any documentary evidence of a medical diagnosis by competent medical authorities to support such conditions.  In the 10 April 2007 letter documenting his 06 April 2007 psychiatric evaluation, he was not determined to be suffering from PTSD or TBI.  The evaluating psychiatrist determined that at the time of the alleged criminal conduct, the Applicant did not have a severe mental disease or defect.  His diagnosis of Adjustment Disorder with depressed mood (acute) was determined to have developed secondary to being incarcerated.  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.  Though the Applicant insinuates that PTSD or TBI was the underlying cause of his misconduct, the record reflects willful misconduct that demonstrated he was unfit for further service.  The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions.  The NDRB determined PTSD and TBI did not mitigate 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.

Pertinent Regulation/Law

A.  Paragraph 1105, DISCHARGE ADJUDGED BY SENTENCE OF 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)(a), 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.

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