ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20131112 and 20140131
Characterization of Service Received:   
Narrative Reason for Discharge:   
Authority for Discharge:   SECNAVINST 1920.6c

Applicant’s Request:	Characterization change to: 
	Narrative Reason change to: 

Summary of Service

Prior Service:
Inactive:	USMCR (DEP)	20000126 - 20000814  	Active:		20000815 - 20031006  
					20031007 - 20070519  
Period of Service Under Review:
Date of Appointment:  20070520	Age:  
Years Contracted:  Indefinite
Date of Discharge:  20130302	Highest Rank:  
Length of Service:    Year(s)    Month(s)  13  Day(s)
Education Level:  	AFQT:  88
MOS:  7210
Fitness Reports:  

Awards and Decorations (per DD 214):	Rifle  (4) Pistol     (2)    KDSM  (5) CoC MUC

Periods of UA/CONF:  

NJP:  
 
- 20121004:	Article  (Failure to obey order or regulation)
	Article  (Assault, 4 specifications)
	Specification 1:  Unlawfully assault spouse by squeezing his hands around her neck
	Specification 2: Unlawfully assault spouse by throwing her to the ground by way of an arm bar and leg sweep
	Specification 3: Unlawfully assault spouse by pushing and slamming her against the wall with his hands
	Specification 4: Unlawfully assault son, a child under the age of 16 years, by pushing him with his hands
	Article 133 (Conduct unbecoming an officer and a gentleman)
	Article  (General Article - drunk and disorderly and communicating a threat)
	Awarded:    Suspended:  

SCM:  	SPCM:  	CC:  	Retention Warning Counseling:  

Administrative Corrections to the Applicant’s DD 214

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

	  “SECNAVINST 1920.6C”
	  “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.  Secretary of the Navy Instruction 1920.6C (ADMINISTRATIVE SEPARATION OF OFFICERS), effective 15 December 2005 until Present, establishes policies, standards and procedures for the administrative separation of Navy and Marine Corps officers from the naval service in accordance with Title 10, United States Code and DoD Directive 1332.30 of 14 March 1997.

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 violations of the UCMJ, Articles 92, 128, and 133.

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

Applicant’s Issues

1.	The Applicant contends his discharge was based on a single incident of misconduct that was not reflective of his total service and character. 
2.	The Applicant contends Post-Traumatic Stress Disorder (PTSD) mitigates his misconduct.

Decision

Date:  20140410		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 a deployment to Iraq from February to May 2003 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 included   for  of the Uniform Code of Military Justice (UCMJ): Article 92 (Failure to obey order or regulation, wrongful use of prescribed or over-the-counter drug), Article 128 (Assault, 4 specifications of domestic assault), Article 133 (Conduct unbecoming an officer and a gentleman), and Article 134 (General Article, drunk and disorderly and communicating a threat).  Based on the offenses committed by the Applicant,  command administratively processed  for separation.  When notified of administrative separation processing using the  procedure, the Applicant   rights to consult with a qualified counsel and submit a written statement but waived his right to request an administrative board.

:  (Decisional) ()  .  The Applicant contends his discharge was based on a single incident of misconduct that was not reflective of his total service and character.  The Applicant received an Honorable characterization for two enlistments from August 2000 to May 2007.  Each period of enlistment is an independent obligation and characterization is determined for that specific period of time.  During his commissioned service, he was found guilty at NJP of violating UCMJ Articles 92, 128, 133, and 134.  The Applicant was initially referred to a Special Court-Martial for these charges, however, the Applicant requested to plead guilty at NJP and waive his right to a Board of Inquiry in lieu of a trial by Special Court-Martial.  In the request, 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 Under Other Than Honorable Conditions, which might deprive him of virtually all veterans benefits based upon his current service.  After a complete review of the records, the NDRB determined his discharge was warranted, proper, and equitable.  Relief denied.

:  (Decisional) ()  .  The Applicant contends PTSD mitigates his misconduct.  On 1 March 2012, the Applicant was involved in misconduct that eventually resulted in his discharge from the Marine Corps.  The Applicant was diagnosed as being alcohol dependent on 7 March 2012 and was started on an intensive outpatient treatment program on 22 March 2012.  On 31 March 2012, however, he was determined to be a treatment failure after he was hospitalized for substance-induced psychosis related to his abuse of over-the-counter medications containing Dextromethorphan.  The Applicant’s record shows his unit then enrolled him in an intense in-patient substance abuse rehabilitation treatment program from 9 April 2012 to 9 May 2012.  On 27 March 2012, the Applicant revealed during the 

investigation into his misconduct that he had been involved in a vehicle convoy that struck and killed a young Iraqi boy while the Applicant was deployed to Iraq in 2003.  The Applicant made a statement that his vehicle was the second vehicle to accidentally drive over the boy.  The Applicant stated that he did not experience “traditional symptoms of PTSD” after the incident, but he suffered from mild and temporary hallucinations after waking from sleep.  There is no evidence in the Applicant’s record, nor did he provide evidence to the NDRB, that the Applicant sought medical or psychiatric help for PTSD symptoms in the years between his Iraq deployment in 2003 and his misconduct on 1 March 2012.  On 30 November 2012, medical authorities screened the Applicant, and they found he did not have PTSD or Traumatic Brain Injury.  The Applicant was found to be fit for separation and was not recommended for further evaluation.  The Applicant provided no additional evidence, other than his statement, that PTSD was an underlying cause of his misconduct and warranted mitigation.  The NDRB determined that, although the Applicant was likely under the influence of alcohol when he assaulted his wife and son, alcohol abuse is not an excuse for misconduct, and the NDRB further determined PTSD did not mitigate his misconduct, and his discharge was warranted, proper, and equitable.  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