ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20130820
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)	20040622 - 20040629  	Active:		20040630 - 20081114  

Period of Service Under Review:
Date of Current Enlistment:  20081115	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20100609	Highest Rank:  
Length of Service:    Year(s)    Month(s)  25  Day(s)
Education Level:  	AFQT:  58
MOS:  7257
Proficiency/Conduct Marks (# of occasions):  	Fitness Reports:  

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

Periods of UA/CONF:  

NJP:  
- 20091207:	Article  (Drunken or reckless operation of vehicle, aircraft, or vessel)
	Awarded:     Suspended:    

- 20100122:	Article  (Assault)
	Article  (General Article; disorderly conduct, drunkenness)
	Awarded:     Suspended:  

SCM:  	SPCM:  	CC:  	Retention Warning Counseling:  

CIVIL ARREST:       [Extracted from NAVMC 10835A covering period from 20090925 to 20091207]

- 20091014:	Charges:  Driving While Intoxicated

- 20091107:	Charges:  Assault and drunk and disorderly conduct

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 contends he served honorably for 5 years and 10 months.
2.	The Applicant contends his discharge is unjust and too harsh for two in-service alcohol-related incidents.
3.	The Applicant contends his misconduct can be attributed to his post-service diagnosis of a mental health condition with Post-Traumatic Stress Disorder (PTSD) symptoms for which he is receiving treatment from the Department of Veterans Affairs (VA).
4.	The Applicant contends his misconduct is mitigated by an in-service Traumatic Brain Injury (TBI).

Decision

Date:  20140227		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 claims 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 his record revealed that he deployed to Iraq in support of Operation IRAQI FREEDOM.

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 in his second enlistment included   for  of the Uniform Code of Military Justice (UCMJ): Article 111 (Drunken or reckless operation of vehicle, aircraft, or vessel), Article 128 (Assault), and Article 134 (General Article; disorderly conduct, drunkenness).  The Applicant’s record of service documents that these NJPs correlated to civil arrests on 14 October 2009 and 07 November 2009.  Based on the offenses committed by the Applicant,  command administratively processed  for separation.  The NDRB did not have the Applicant’s administrative separation package to determine whether or not the Applicant waived  rights to consult with a qualified counsel, submit a written statement, and request an administrative board.  However, per the Applicant’s DD Form 214, the Separation Code GKB1 indicates the Applicant exercised his right to appear before an administrative board.

:  (Decisional) ()  .  The Applicant contends he served honorably for 5 years and 10 months.  The Applicant states his character is demonstrated by his good conduct and efficiency ratings, a good rate of promotions, and letters of commendation and awards he received while in service.  The Applicant received an Honorable discharge for his first enlistment from June 2004 to November 2008.  Each period of enlistment is an independent obligation and characterization is determined for that specific period of time.  During his second enlistment, he had two civil arrests, was found guilty at two NJPs of violating several UCMJ articles, and met the requirements for administrative separation for Misconduct (Serious Offense), Misconduct (Pattern of Misconduct), Misconduct (Civilian Conviction), and Alcohol Rehabilitation Failure.  Since the Applicant was administratively separated and not separated upon expiration of enlistment or fulfillment of service obligation, the characterization of service is determined by the quality of the member’s total performance of duty and conduct during the current enlistment, including the reason for separation.  Other considerations shall be given to the member’s length of service, grade, aptitude, and physical and mental condition.  Based on the Applicant’s record of service, the NDRB determined the Applicant engaged in conduct involving one or more acts or omissions that constituted a significant departure from the conduct expected of members of the Naval Service, and the awarded characterization of service was warranted.  Relief denied.

:  (Decisional) ()  .  The Applicant contends his discharge is unjust and too harsh for two in-service alcohol-related incidents.  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 is 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 supports the conclusion that the Applicant committed serious offenses, had a demonstrated pattern of misconduct, was an alcohol rehabilitation failure, that separation from the Marine Corps was appropriate, and that an Under Other Than Honorable Conditions discharge was warranted.  Relief denied.

:  (Decisional) ()  .  The Applicant contends his misconduct can be attributed to his post-service diagnosis of a mental health condition with PTSD symptoms for which he is receiving treatment from the VA.  When reviewing a discharge, the NDRB does consider the extent to which a medical or mental health problem might affect an Applicant’s performance and ability to conform to the military’s standards of conduct and discipline.  However, the NDRB does not consider the circumstances surrounding the Applicant’s stated condition or diagnosis to be of sufficient nature to excuse the Applicant’s misconduct.  The NDRB reviewed the Applicant’s service and medical records (in-service and VA) and saw nothing to indicate that he was not responsible for his actions or should not be held accountable for his misconduct.  The NDRB determined his mental health condition with PTSD symptoms did not mitigate his misconduct.  Relief denied.

4:  (Decisional) ()  .  The Applicant contends his misconduct is mitigated by an in-service TBI.  There is no valid diagnosis by military, civilian, or VA health care providers for this diagnosis.  Additionally, the injury the Applicant referred to in making this claim is recorded in the Applicant’s final in-service incident of misconduct where he was arrested and charged with assault by civilian authorities.  His detailed examination before incarceration was conducted at the George Washington University Hospital and found “no CT evidence of an acute intracranial hemorrhage, mass effect, territorial infaract.”  In the hospital’s treatment record, the Applicant is documented as non-cooperative and reported he was hit over the head with a beer bottle.  His police escort reported the Applicant was hit over the head with a Mag light.  He was evaluated and treated at the hospital and then released to civilian authorities.  The NDRB determined his non-combat, misconduct-related TBI did not mitigate any subsequent 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 6210, Misconduct 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 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