ex-LCpl, USMC

Current Discharge and Applicant’s Request

Application Received:  20151014
Characterization of Service Received:  (per DD 214) UNDER OTHER THAN HONORABLE CONDITIONS
Narrative Reason for Discharge:  (per DD 214) MISCONDUCT
Reenlistment Code:  RE-4
Authority for Discharge:  (per DD 214) MARCORSEPMAN 6210.7 [CIVIL CONVICTION]

Applicant’s Request:	Characterization change to: HONORABLE
	Narrative Reason change to: REQUESTED, BUT NOT SPECIFIED
	
Summary of Service

Prior Service:
Inactive:	USMCR (DEP)	20040622 - 2004082  COG	Active:	USMC 20040830 – 20081114 HON

Period of Service Under Review:
Date of Current Enlistment:  20081115	Age at Enlistment:  23
Period of Enlistment:  4 Years  10 Months
Date of Discharge:  20100609	Highest Rank:  SERGEANT
Length of Service:  01  Year(s)  06  Month(s)  25  Day(s)
Education Level:  12	AFQT:  58
MOS:  7257
Fitness Reports:  AVAILABLE

Awards and Decorations (per DD 214):	Rifle EX Pistol MM GCM ICM(2) SSDR GWOTSM NDSM MUC LoA CoA 

Periods of UA/CONF:  NONE

NJP:  2

- 20091207:	Article 111 (Drunken or reckless operation of a vehicle; O/A 20091014, SNM operated a motor vehicle in a wanton manner by driving under the influence of alcohol.)
	Awarded: RIR FOP RESTR EPD Suspended:  RIR FOP RESTR EPD

- 20100122:	Article 128 (Assault; O/A 20091107, SNM wrongfully assaulted a civilian by choking him from behind.)
	Article 134 (General article; O/A 20091107, SNM was found drunk and disorderly.)
	Awarded: RIR FOP RESTR Suspended:  FOP 

SCM:  NONE 

SPCM:  NONE

CC:  NFIR

Retention Warning Counseling:  1

- 20091207:	For misconduct resulting in NJP on 20091207 where you were found guilty of Article 111.

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.

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

Applicant’s Issues

1.	The Applicant contends his misconduct was caused by undiagnosed PTSD and does not reflect his overall quality of service during his five years and ten months of active duty.  

Decision

Date:  20160208	       DOCUMENTARY REVIEW	Location: Washington D.C.	 Representation: NONE

By a vote of 5-0 the Characterization shall remain UNDER OTHER THAN HONORABLE CONDITIONS.
By a vote of 5-0 the Narrative Reason shall remain MISCONDUCT.

Discussion
As a result of the Applicant’s claim of PTSD or 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.  The Applicant stated that he was diagnosed with PTSD on a post-service assessment completed by the VA.  The Applicant’s service record documents participation in Operation IRAQI FREEDOM from September 2008 to February 2009.  

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 completed a thorough review of the circumstances that led to his discharge and the discharge process to ensure his discharge met the pertinent standards of equity and propriety.  The Applicant’s record of service included one 6105 counseling warnings, two nonjudicial punishments (NJPs) for violations of the Uniform Code of Military Justice (UCMJ):  Article 111 (Drunken or reckless operation of a vehicle); Article 128 (Assault), and Article 134 (General article).  Based on a civil conviction, his command administratively processed him for separation.  The NDRB did not have the Applicant’s administrative separation package to determine whether or not the Applicant waived his rights to consult with a qualified counsel, submit a written statement, and request an administrative board or a General Court-Martial Convening Authority review.  However, the Applicant’s separation code of GKB1 indicates that there was an administrative separation board.

Issue 1:  (Decisional) (Propriety/Equity)  RELIEF NOT WARRANTED.  The Applicant contends his misconduct was caused by undiagnosed PTSD and does not reflect his overall quality of service during his five years and ten months of active duty.  The Applicant provided a statement and copies of his service record, separation physical and VA records providing a post-service diagnosis for PTSD.  The NDRB requested the Applicant’s medical treatment records, but the VA was unable to locate them.  The Applicant’s fitness report ending 07 December 2009 documents that the member had two alcohol related incidents during the reporting period, three during a three year period, and four in a five year period.  At least one of the incidents occurred before the combat deployment.   

Each period of enlistment is an independent obligation, and characterization of service is determined for that specific period.  During the Applicant’s second enlistment, he went to NJP for driving under the influence of alcohol and then again for a separate incident where the Applicant assaulted a civilian by choking him from behind.  When reviewing a discharge, the NDRB does consider the extent to which a mental health problem might affect an Applicant’s performance and ability to conform to the military’s standards of conduct and discipline.  An Under Other Than Honorable Conditions characterization of discharge is warranted when a member engages in conduct involving one or more acts or omissions that constitute a significant departure from the conduct expected of members of the Naval Service.  Though the Applicant may feel that mental health was the underlying cause of his misconduct, the evidence did not show that the mental health was sufficiently mitigating to excuse the Applicant’s conduct or accountability concerning his actions at the time.  The NDRB determined the Applicant’s conduct, which forms the primary basis for determining the character of his service did not warrant an upgrade. 

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service, service record entries, and discharge process, the Board found the discharge was proper and equitable at the time of discharge.  Therefore, the awarded characterization of service shall remain UNDER OTHER THAN HONORABLE CONDITIONS and the narrative reason for separation shall remain MISCONDUCT.  The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of his 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