ex-Pvt, USMC
CURRENT DISCHARGE AND APPLICANT'S REQUEST
Application Received: 20131203
Characterization of Service Received: (per DD 214) BAD CONDUCT DISCHARGE
Narrative Reason for Discharge: (per DD 214) COURT-MARTIAL
Authority for Discharge: (per DD 214) MARCORSEPMAN 1 105 [COURT-MARTIAL)
Applicant's Request: Characterization change to: HONORABLE OR GENERAL (UNDER HONORABLE CONDITIONS) Narrative Reason change to: SECRETARIAL DISCRETION

SUMMARY OF SERVICE 
Prior Service:
Inactive: USMCR (DEP) 19970219 - 19970629 COG	Active: USMC 19970630 - 20010117 HON
Period of Service Under Review:
Date of Current Enlistment: 20010118
Period of Enlistment: 4 Years O Months	Age at Enlistment: 23	
Date of Discharge: 20050527	Highest Rank: SERGEANT	
Length of Service: 04 Years 04 Months 10 Days
Education Level: 12	AFQT: NFIR
MOS: H42
Proficiency/Conduct Marks (# of occasions): 4.5 (NFIR) / 4.4 (NFIR) Fitness Reports: AVAILABLE
Awards and Decorations (per DD 214): Rifle EX (2) Pistol MM NMCAM (3) GCM NDSM SSDR NUC COC
Period ofUA: NONE
NJP: NONE	SCM: NONE	CC: NONE	Retention Warning Counseling: NONE
SPCM: I
- 200304 t 7: Article 107 (False official statement, 4 specifications)
Sentence: RIR E-l FOP CONF 9 months (20030110-20030825, 227 days) BCD
TYPES OF DOCUMENTS/SUBMITTED/REVIEWED
 Related to Military Service:
DI) 214:
Related to Post-Service Period:		Service/Medical Record:	Other Records:	
Employment:		Finances:	Educationnraining:	
Health/Medical Records:		Rehabilitationnreatment: C]	Criminal Records:	
Personal Documentation:	C]	Community Service:	References:	
Department of VA letter: Additional Statements:	[2	Other Documentation:		
From Applicant:		From/To Representatioh:

PERTINENT REGULATION/LAW	From/To Congress member:	

A. Paragraph 105, DISCHARGE ADJUDGED BY SENTENCE OF COURT-MARTIAL, ofthe Marine corps Separation and Retirement Manual, (MCO PI 900.16F), effective I 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 Il, Para 21 1, Regularity of Government Affairs, Part V, Para 502, Propriety and Para 503,

				

DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT
APPLICANT'S ISSUES
l . The Applicant contends his in-service conduct and performance warrants an upgrade.
2.	The Applicant contends Post-Traumatic Stress Disorder (PTSD), delusional disorder, and depressive disorder warrant clemency.
3.	The Applicant seeks clemency based on post-service conduct and accomplishments.
DECISION
Date: 20140820 PERSONAL APPEARANCE HEARING Location: WASHINGTON D.C. Representation: Civilian Counsel
By a vote of 3-2 the Characterization shall change to UNDER OTHER THAN HONORABLE CONDITIONS. 
By a vote of 5-0 the Narrative Reason shall remain COURT-MARTIAL.
DISCUSSION
As a result of the Applicant's claim of PTSD, in accordance with U.S. Code, Title X, Section  the Naval Discharge Review Board reviewed the Applicant's record to see if he deployed in support of a contingency operation and was, as a consequence of that deployment, diagnosed with either PTSD or Traumatic Brain Injury. A review of his record revealed that he did not deploy in support of a contingency operation, and so his case did not warrant an expedited review in accordance with U.S. Code, Title X, Section 1553(d)(I). The NDRB, however, did include a psychiatrist on the board.
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 NDRB presumes regutarity in the conduct of Government 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 case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency. The Applicant's record of service in his second enlistment included one special court-martial (SPCM) for violations of the UCMJ: Article 107 (False official statements, 4 specifications). The Applicant's service record documents a punitive conviction and punishment, as adjudged by a Special Court-Martial, on 17
April 2003. A qualified legal defense counsel represented the Applicant throughout the trial by Special Court-Martial process. Given the facts of the case, the Special Court-Martial awarded the Applicant a Bad Conduct Discharge, reduction to the pay grade of E-l, forfeiture of $767 pay per month for nine months, and confinement for a period of nine months. The Convening Authority approved the sentence as adjudged. The case was submitted for review to the U.S. Navy-Marine Corps Court of Criminal Appeals without assignments of error; it was reviewed and the findings were affirmed on 14 March 2005.
Issue 1: (Decisional) (Ciemency) RELIEF NOT WARRANTED. The Applicant contends his in-service conduct and performance warrants an upgrade. The Applicant received an Honorable characterization of service for his first enlistment from June 1997 to January 2001. Each period is an independent obligation and characterization is determined for that specific period of time. During his second enlistment, he was found guilty of violating UCMJ Article 107 at a Special CourtMartial and sentenced to a Bad Conduct Discharge. Based on the Applicant's record of service in his second enlistment, the NDRB found the evidence of record did not contain sufficient mitigating or extenuating factors to offset the seriousness of the offenses for which the discharge was awarded. Relief denied.
Issue 2: (Decisional) (Clemency) RELIEF NOT WARRANTED. The Applicant contends PTSD, delusional disorder, and depressive disorder warrant clemency. A review of the Applicant's record did reveal that he was evaluated by a licensed clinical psychologist on I I February 2013 and diagnosed with PTSD, depressive disorder, and delusional disorder. Despite the psychiatric diagnosis, proper medical authority determined the Applicant was able to appreciate the nature, quality, and wrongfulness of his conduct at the time of his criminal conduct. Though the Applicant may feel that PTSD, delusional disorder, and depressive disorder mitigate his misconduct, the record reflects Willful misconduct and did not show that he was either not responsible for his conduct or that he should not be held accountable for his actions. The NDRB determined PTSD, delusional disorder, and depressive disorder did not mitigate his misconduct, and clemency is not warranted. Relief denied.

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