ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20130913
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)	20000424 - 20000904  	Active:		20000905 - 20041020  
					20041021 - 20081022  
					20081023 - 20130326  

Period of Service Under Review:
Date of Current Enlistment:  20130327	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20130725	Highest Rank:  
Length of Service:    Year(s)    Month(s)  29  Day(s)
Education Level:  	AFQT:  56
MOS:  7257 / 7254 / 7252 / 7253
Fitness Reports:  

Awards and Decorations (per DD 214):	Rifle  Pistol    (2)  (4)  ACM (3)  (2)    (4)  (3)  CoC 

Periods of CONF:  

In Hands of Civil Authorities:  20130414 - Date Not Found in Record

NJP:  	SCM:  		SPCM:  	CC:  	Retention Warning Counseling:  

CIVIL ARREST:  

- 20130414:	Charges:  One count of attempted manslaughter in the 2nd degree of domestic violence, two counts of aggravated assault per domestic violence, and one count of aggravated assault

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

	  “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 000905 UNTIL 130326”
	  “MISCONDUCT”

The NDRB will recommend to the Commandant of the Marine Corps, MMSB-13, that the DD 214 be corrected as appropriate.

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 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.

C.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 128 (Assault).

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

Applicant’s Issues

1.	The Applicant contends his Administrative Separation Board was held prematurely, which prejudiced his ability to prepare and present matters.
2.	The Applicant contends the Post-Traumatic Stress Disorder (PTSD) determination for his Administrative Separation Board was conducted hastily in light of the negative media attention his case was bringing.
3.	The Applicant contends the Administrative Separation Board did not fully consider his character and work performance statements in determining his discharge characterization.
4.	The Applicant contends his discharge is inequitable, because it was based on an isolated incident in 12 years and 10 months of service with no other adverse action. 

Decision

Date:  20140130		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, 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 four deployments as an Air Traffic Controller conducting combat service support operations in support of Operations IRAQI FREEDOM and ENDURING 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 included no 6105 counseling warnings and no misconduct resulting in nonjudicial punishment or court-martial.  However, the Applicant was arrested by civilian authorities and charged with one count of attempted manslaughter in the 2nd degree of domestic violence, two counts of aggravated assault per domestic violence, and one count of aggravated assault.  Based on the offenses committed by the Applicant,  command administratively processed  for separation.  When notified of administrative separation processing using the  procedure, the Applicant exercised  rights to consult with a qualified counsel and request an administrative board but waived his right to submit a written statement.  By unanimous vote, the Applicant’s Administrative Separation Board found that the preponderance of the evidence proved all acts or omissions alleged, immediate separation from the Marine Corps was warranted, and the characterization of service should be Under Other Than Honorable Conditions.   

:  (Decisional) ()  .  The Applicant contends his Administrative Separation Board was held prematurely, which prejudiced his ability to prepare and present matters.  A servicemember may be processed for separation for the commission of a serious military or civilian offense when the offense or a closely related offense is a violation of the UCMJ and warrants a punitive discharge in accordance with the Manual for Courts-Martial.  There is no requirement for adjudication by judicial or non-judicial proceedings, but the offense must be substantiated by a preponderance of the evidence.  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 his Administrative Separation Board was conducted prematurely and that he and his counsel did not have enough time to prepare and present matters.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.  Relief denied.

:  (Decisional) ()  .  The Applicant contends the PTSD determination for his Administrative Separation Board was conducted hastily in light of the negative media attention his case was bringing.  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.  The NDRB requested all records of medical treatment, both active duty and post-service, from the Department of Veterans Affairs (VA).  The records received from the VA failed to document any request for evaluation, any diagnosis, or any findings of PTSD or other mental health concerns.  Moreover, the Applicant did not provide any evidence of a diagnosis of PTSD from any other private mental health treatment provider to document his claim.  The reference for PTSD symptoms came from a post-deployment health screening in which the Applicant noted he had not engaged in combat activities such as discharging his weapon.  Additionally, the Applicant noted to the mental health evaluator that his PTSD like symptoms had gotten worse while he was in jail after his arrest.  The NDRB found no significant evidence in the record of any indications of, or diagnosis for, PTSD.  Additionally, there is no evidence in either the Applicant’s service record, or the documentation he provided, that demonstrated any problems or symptoms manifesting during his enlistment from his service in Iraq or Afghanistan.  Furthermore, the Applicant’s record does not document any attempts to seek help for any combat stress-related symptoms while in service.  Lacking any substantial evidence of PTSD, the NDRB is unable to establish this contention as a basis for mitigation or consideration as an extenuating circumstance.  Though the Applicant may feel that PTSD 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 his PTSD determination was not conducted hastily, and PTSD did not mitigate his misconduct.  Relief denied. 

:  (Decisional) ()  .  The Applicant contends the Administrative Separation Board did not fully consider his character and work performance statements in determining his discharge characterization.  There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that he was wrongfully discharged.  Further, there is no evidence in the record, nor has the Applicant produced any evidence, to show that the Administrative Separation Board did not fully consider his character and work performance statements.  The Applicant’s basis for separation was commission of a serious offense as the result of civilian charges closely related to violations of Uniform Code of Military Justice (UCMJ) Article 128 (Assault).  Violations of UCMJ Article 128 are considered serious offenses that could have resulted in a punitive discharge (i.e., Bad Conduct or Dishonorable) from a Special or General Court-Martial.  After a complete review of the records and Administrative Separation Board proceedings, the NDRB determined his discharge was proper and equitable and was completely in line with what others received with similar service and misconduct.  Relief denied.
 
4:  (Decisional) ()  .  The Applicant contends his discharge is inequitable, because it was based on an isolated incident in 12 years and 10 months of service with no other adverse action.  The Applicant received Honorable discharges for his first three enlistments from September 2000 to March 2013.  Each period of enlistment is an independent obligation and characterization is determined for that specific period of time.  During his fourth enlistment, civilian authorities charged him for multiple serious offenses.  Certain serious offenses, even though isolated, warrant separation from the service to maintain proper order and discipline.  Civilian charges akin to UCMJ Article 128 are offenses that warrant processing for administrative separation regardless of grade, performance, enlistments, deployments, or time in service.  This usually results in an unfavorable characterization of discharge or, at a maximum, a punitive discharge and possible confinement if adjudicated and awarded as part of a sentence by a special or general court-martial.  The command did not pursue a punitive discharge but opted instead for the more lenient administrative discharge.  In accordance with the Marine Corps Separation and Retirement Manual, servicemembers may be separated based on the commission of a serious military or civilian offense when the commanding officer believes the specific circumstances of the offense warrant separation and the offense would warrant a punitive discharge if adjudicated at trial by court-martial for the same or closely related offense.  Commission of a serious offense does not require adjudication by nonjudicial or judicial proceedings or civilian conviction, however, the offense must be substantiated by a preponderance of evidence.  The Applicant’s Administrative Separation Board found the preponderance of the evidence substantiated all acts or omissions alleged.  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