ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20150930
Characterization of Service Received:   
Narrative Reason for Discharge:   
Reenlistment Code:  
Authority for Discharge:   MARCORSEPMAN 

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

Summary of Service

Prior Service:
Inactive:	USMCR (DEP)	19950427 - 19950508  	Active:		19950509 - 20000508  
					20000830 - 20031002  
					20031003 - 20071113  
					20071114 - 20120907  

Period of Service Under Review:
Date of Current Enlistment:  20120908	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20140509	Highest Rank:  
Length of Service:    Year(s)    Month(s)  02  Day(s)
Education Level:  	AFQT:  84
MOS:  6124, 6012, 6018, 6023
Proficiency/Conduct Marks (# of occasions):  N/A	Fitness Reports:  

Awards and Decorations (per DD 214):	Rifle (8) Pistol (6) (4)  (6) (2) ICM(2)  (6) LoC(2) MM(3)

Periods of UA/CONF:  
 
NJP:  

- 20131217:	Article 134 (General article, disorderly conduct, drunkenness)
	Awarded: (2 months) (60 days) REDUX IN MCMAP BELT FROM GREEN TO GRAY
	Suspended:  (1 month) (60 days)

SCM:  

SPCM:  

CIVIL ARREST:  

- 20131201:	Charges:  Disorderly conduct, drunkenness [Extracted from 6105 counseling entry dated 20131223]

CC:  

Retention Warning Counseling:  

- 20130628:	For the following deficiency:  An Incident Determination Committee (IDC) met on 27 June 2013, and determined that you “met criteria” for spouse physical maltreatment.  Your actions, a violation of Article 128 of the UCMJ, are contrary to good order and discipline and will not be tolerated.

- 20131223:	For the following deficiency:  You were awarded Nonjudical Punishment for violation of UCMJ Article 134 (disorderly conduct, drunkenness).  Specifically, you were arrested on 1 December 2012 for disorderly conduct, drunkenness.  An incident determination committee determined that as a result of this incident you “met criteria” for spouse physical maltreatment/abuse by physically harming your spouse.

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 950509 UNTIL 000508 AND 000830 UNTIL 120907”
	  “”

The NDRB will recommend to the Commandant of the Marine Corps 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:	

Types of Witnesses Who Testified

	Expert:		Character:	

Pertinent Regulation/Law

A.  Paragraph 6210, MISCONDUCT of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), 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.

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

Applicant’s Issues

1.	The Applicant contends there were procedural errors in his separation in light of the issues raised during his Physical Evaluation Board (PEB).
2.	The Applicant requests reconsideration of his discharge characterization based upon SECDEF Memo dated 3 September 2014 which requires a review and liberal reading of any discharge involving the separation or retirement of any service member suffering from post-traumatic stress disorder (PTSD) or traumatic brain injury (TBI).
3.	The Applicant contends that the medical issues for which his PEB recommended his medical discharge and from which he still suffers were significant and contributed significantly to the circumstances surrounding his misconduct discharge.

Decision

Date:  20160407		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 post-traumatic headaches, traumatic brain injury (TBI), sleep disorder, cervical disc disease, mood disorder, and cognitive changes in accordance with U.S. Code, Title X, Section 1553 (d)(1) and (e)(2), 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.  Although the Applicant’s service record shows numerous overseas deployments in support of combat operations, the medical records reviewed show his injury was sustained in a non-combat related assault during the 2007-8 timeframe.  From the record, the Applicant’s service documentation records his conducting combat service support operations as follows:  OPERATION ENDURING FREEDOM, Kuwait, 30 January to 20 March 2003; OPERATION IRAQI FREEDOM, Iraq, 21 March to 4 June 2003; OPERATION IRAQI FREEDOM 2-2, Iraq, 22 February to 17 September 2004; and OPERATION IRAQI FREEDOM 9-1, Iraq, 9 November 2009 to 4 March 2010.

The Naval Discharge Review Board (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  6105 counseling warnings and   for  of the Uniform Code of Military Justice (UCMJ):  Article 134 (General article, disorderly conduct, drunkenness) as a result of a pretrial agreement to avoid a trial by court-martial due to substantiated domestic abuse incidents.  Based on the offense(s) committed by the Applicant,  command administratively processed  for separation.  When notified of administrative separation processing using the  procedure, the Applicant   right to an administrative board in accordance with the conditions of his pretrial agreement and exercised his right to consult with a qualified counsel and submit a written statement.  The record of evidence shows that the Applicant was properly represented by qualified legal counsel throughout both his misconduct proceedings and discharge process.  Before this period of enlistment began the record shows that the Applicant was extensively medically screened and evaluated, culminating in his evaluation before a Physical Evaluation Board (PEB).

:  (Decisional) ()  .  The Applicant contends there were procedural errors in his separation in light of the issues raised during his Physical Evaluation Board (PEB).  Department of Defense regulations provide that disciplinary separations supersede disability separations.  Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons.  Whenever a member is being processed through the PEB, 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.

The Applicant’s administrative separation package documents his notification for separation based upon the serious offense of a substantiated domestic abuse incident.  Specifically cited was his 1 December 2012 domestic assault against his wife which was substantiated as spouse physical maltreatment on 27 June 2013 by an Incident Determination Committee.  In accordance with applicable service regulations, 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 statements and documents provided by the Applicant do not refute the presumption of regularity in this case.  The Applicant was provided the opportunity to present his case before a court-martial, but knowingly and willingly entered into a pretrial agreement to avoid court-martial and waive his right to appear before an administrative separation board while presenting a written statement for consideration to his separation authority.

Respecting the Applicant’s implication concerning the finalized PEB results being released after his discharge proceedings were completed, the NDRB conducted an exhaustive review of the Applicant’s service record and the materials he submitted.  The NDRB found that the PEB’s conclusion recommendation was issued on 11 April 2014, which included consideration for all conditions documented on the 25 March 2014 disability evaluation system proposed rating.  As such, the NDRB noted that the Commandant of the Marine Corps administrative separation decision for the Applicant was signed by the Deputy Commandant for Manpower and Reserve Affairs on 5 May 2014 and the Applicant was separated several days later on 9 May 2014.  In conducting this review the NDRB considered the medical officer’s screening dated 7 January 2014 submitted with his administrative separation package.  In this letter, the NDRB noted the Applicant had “been followed by TBI clinic since 2012 after symptoms suggestive of a TBI after sustaining a head injury in 2007…neurological history and physicals [the Applicant] reported a significant history of traumatic brain injury, and a review of the record suggests that he may have had some changes on the head CT c/w blood in 2008 time frame after an assault, although the actual CTs were not available for review…[he] is a 38 year old man with a complicated medical history.  He reports a history of significant head injuries.  However, his physical examination and neurological examination are not diagnostic for someone with symptoms due to a TBI.  He has lab work that is not diagnostic for a TBI.  He has documented in AHLTA essentially normal CTs and MRIs, except for one which is referred to but not available for review that suggests that the [Applicant] had some blood, possibly subarachnoid, on head CT after an assault.  He had an essentially normal NPE.  A TBI can cause headaches, problems with mood, memory, sleep, and balance.  People who have sustained a TBI can become more impulsive.  However, there is no evidence in the information reviewed that the [Applicant] has had a TBI resulting in the inability to distinguish between right and wrong.”  Finally, all reviewing officials up to and including the separation authority attested that they had reviewed all medical documentation and had determined that PTSD/TBI were not contributing factors for the basis of the Applicant’s separation.  The NDRB concurs with the findings of the separation authority.  Relief denied.

 & 3:  (Decisional) ()  .  The Applicant requests reconsideration of his discharge characterization based upon SECDEF Memo dated 3 September 2014 which requires a review and liberal reading of any discharge involving the separation or retirement of any service member suffering from post-traumatic stress disorder (PTSD) or traumatic brain injury (TBI).  The Applicant also contends that the medical issues for which his PEB recommended his medical discharge and from which he still suffers were significant and contributed significantly to the circumstances surrounding his misconduct discharge.  Though the Applicant may feel that TBI and the associated diagnoses were 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 TBI was a sufficient mitigating factor to excuse the Applicant’s conduct or accountability concerning his actions.  After an exhaustive review, the NDRB determined that TBI did not mitigate the Applicant’s misconduct.  Substantiated physical spousal abuse, which resulted in arrest, was a conscious decision to violate the tenants of honorable and faithful service.  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 remain UNDER OTHER THAN HONORABLE CONDITIONS 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, or http://www.secnav.navy.mil/mra/bcnr/Pages/default.aspx 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:  Effective 6 February 2015, the NDRB is authorized to change a NDRB Applicant’s Reenlistment Code if related to an accompanying change in discharge characterization or narrative, but this authority is strictly limited to those cases where an applicant’s narrative reason or characterization of discharge is changed and that change warrants revision of the previously issued reenlistment code.  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