ex- PVT, 

Current Discharge and Applicant’s Request

Application Received: 20151231
Characterization of Service Received:   
Narrative Reason for Discharge:   COURT-MARTIAL
Authority for Discharge:   MILPERSMAN 5815-010 [COURT-MARTIAL] 

Applicant’s Request:	Characterization change to:	
	Narrative Reason change to: SECRETARIAL AUTHORITY
	Reentry Code change to: NONE REQUESTED

Summary of Service

Prior Creditable Service:
Inactive:			Active:	 

Period of Service Under Review:
Date of Enlistment:  19990928	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20060804	Highest Rank/Rate:  LCpl
Length of Service:   Year(s)     Month(s)   04 Day(s)
Education Level:  	AFQT:  70

Evaluation Marks (# of occasions):  Performance/Proficiency: 4.3 (11)   Behavior/Conduct: 4.1 (11)    
Fitness Reports: 

Awards and Decorations (per DD 214):	Rifle  GCM NDSM SSDR NUC  

Other Time Lost per DD214:  NONE

NJP:  

- 20030130:	Article 112a (Wrongful use, possession, manufacture or introduction of controlled substance, Cocaine)
	Awarded:       Suspended:      

- 20031028:	Article 86 (Absence without leave, etc.) 0615, 20031022 to 0545, 20031023
	Awarded:       Suspended:      

SCM:  		
	
SPCM:  

- 20031008:	Article 86 (Absence without leave, etc.) 2 specifications
	Specification 1: 20030516-20030804, 79 days
	Specification 2: 20030923-20031003, 8 days 
	Article 112a (Wrongful use, possession, manufacture or introduction of controlled substance) 3 specifications
	Specification 1: Wrongfully use cocaine on or about 20030104
	Specification 2: Wrongfully use cocaine on or about 20030201
	Specification 3: Wrongfully use methamphetamine on or about 20030201  
	Sentence:  CONF 55 days (20031008-20031017, 10 days) 
	CA: The sentence is approved and, except for the bad conduct discharge, ordered executed.  Further, the deferred automatic forfeitures are hereby waived for a period of six months from the date of this action provided the accused establishes and maintains a dependent allotment in the amount of the waived forfeitures to J_ M. H_, the accused dependent.   

CIVIL ARREST:  

CC:  

Retention Warning Counseling:  

- 20030113:	For illegal drug involvement – Anabolic Androgenic Steroid usage on 20021218, as identified through urinalysis, and confirmed by UCLA Olympic Analytical Laboratory msg dated 20021230. 

Administrative Corrections to the Applicant’s DD 214

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

	  “MARCORSEPMAN 1105”
	
The NDRB will recommend to the Commandant of the Marine Corps or Commander, Navy Personnel Command that the DD 214 be corrected as appropriate.

Types of Documents Submitted/reviewed

	DD 214:		Service/Medical Record:		Other Records:	
	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:	    C-1 :  Janice Munoz (Wife)

Pertinent Regulation/Law
Pending results of hearing

A.  Paragraph 1105, DISCHARGE ADJUDGED BY SENTENCE OF COURT-MARTIAL, 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 IV, Para 403m(7)(a), Presumption Concerning Court-Martial Specifications.

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

Applicant’s Issues

1.	The Applicant contends that he served honorably prior to 2003 without incident and his misconduct was an aberration.
2.	The Applicant contends that his characterization of discharge is unjust and  too harsh.
3.	The Applicant contends that his post-service is worthy of consideration for clemency.
4. 	The Applicant contends his post-traumatic stress disorder (PTSD) was a mitigating factor in his misconduct.
5.	The Applicant is seeking corrections to his DD Form 214.

discussion

Date:  20161118		Location:  WASHINGTON D.C.	Representation:  

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 completed a thorough review of the circumstances that led to the discharge and the discharge process to ensure the pertinent standards of equity and propriety were met.  

As a result of the Applicant’s claim of PTSD or TBI, in accordance with U.S. Code, Title X, Section 1553 (d)(1), and Memorandum, The Secretary of Defense, to Secretaries of the Military Departments, subject: Supplemental Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requests by Veterans Claiming Post Traumatic Stress Disorder (3 Sep. 2014), the NDRB 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 from September 2001 to January 2002 in support of Operations in AFGHANISTAN

The Applicant's record of service included:

  for  of the Uniform Code of Military Justice (UCMJ): 
	Article 86 (Absence without leave, etc.)
Article 112a (Wrongful use, possession, manufacture or introduction of controlled substance)

  for  of the UCMJ:  
Article 86 (Absence without leave, etc.)
Article 112a (Wrongful use, possession, manufacture or introduction of controlled substance)

Based on the  committed by the Applicant, the command administratively processed the Applicant for separation. Based on the Article 112a violation, processing for administrative separation is mandatory.   The Applicants record documents a punitive conviction and punishment, as adjudged by Special Court-Martial on 08 October 2003.  The case was submitted for appellate review to the Navy-Marine Corps Court of Criminal Appeals and the findings were affirmed on 19 September 2005.

:  The Applicant contends that he served honorably prior to 2003 without incident and his misconduct was an aberration. Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the Naval Service to maintain proper order and discipline.  Violation of Article 112a is one such offense requiring mandatory processing for administrative separation regardless of grade, performance, 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 Applicant was found guilty of violation of Article 112a.  However, his command did not pursue a punitive discharge but opted instead for the more lenient administrative discharge.  The NDRB found the characterization of the Applicant’s discharge was equitable and consistent with the characterization of discharge given others in similar circumstances.  Relief denied.

 :  The Applicant contends that his characterization of discharge is unjust and too harsh.  The NDRB reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis.  If such a review reveals an impropriety or inequity, relief is in order.  Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval Service.  Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Navy.  A preponderance of the evidence reviewed supports the conclusion that the Applicant committed a serious offense, that separation from the Naval Service was appropriate, and that a Bad-Conduct d discharge was warranted.  The NDRB found the characterization of the Applicant’s discharge was equitable and consistent with the characterization of discharge given others in similar circumstances.  

:  The Applicant contends that his post-service is worthy of consideration for clemency. In reviewing discharges, the Naval Discharge Review Board (NDRB) presumes regularity 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 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. The NDRB found the characterization of the Applicant’s discharge was equitable and consistent with the characterization of discharge given others in similar circumstances.  Furthermore, the NDRB considers 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.  The Applicant provided a personal statement, evidence of financial stability and continuous employment, and three character references.  However, post-service conduct does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case by case basis to determine if post-service conduct provides a basis for a more thorough understanding of the performance of the Applicant during the period of service that is the subject of the discharge review.  The Board determined that the characterization of service received was appropriate considering the length of service and UCMJ violations.  Relief denied.

4:  The Applicant contends his post-traumatic stress disorder (PTSD) was a mitigating factor in his misconduct.  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 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 NDRB found no 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 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 evidence of PTSD, the NDRB is unable to establish this contention as a basis for mitigation or consideration as an extenuating circumstance.  

However, the Applicant should be aware that the VA has announced special VA enrollment access for PTSD and mental health treatment to combat veterans discharged under other than dishonorable conditions.  Effective Jan. 28, 2008, combat veterans discharged from active duty on or after Jan. 28, 2003 are eligible for combat veteran enhanced eligibility and enrollment placement into Priority Group 6 (unless eligible for higher enrollment Priority Group placement) for 5 years post discharge.  Additionally, the VA determines the eligibility for enrollment in its programs - independent of the Applicant’s characterization of service as determined by the Marine Corps.  The Applicant, as a combat veteran, is encouraged to contact his local VA affairs representative for more information and may request a review of service and determination of benefits from the VA.  Alternately, he may call 1-877-222-8387 or visit the following website for more information: http://www4.va.gov/healtheligibility/Library/pubs/CombatVet/CombatVet.pdf.  Relief denied.

5: The Applicant is seeking corrections to his DD Form 214.  The Applicant seeks administrative corrections to his DD Form 214 form.  In reviewing discharges, the NDRB may identify administrative errors on the Applicant’s DD Form 214 that fall within the scope of the NDRB’s responsibility to examine the propriety and equity of a discharge.  If errors are identified, the NDRB will make recommendations to Headquarters Marine Corps for correction.  However, the NDRB can only make recommendations for administrative corrections and has no ability to track or verify whether change recommendations are completed.  It is the responsibility of the former service member to follow up with the applicable service to ensure changes are incorporated into the record. 
 
decision

After a thorough review of the available evidence, to include the Applicant’s issues, summary of service,  record entries, and discharge process, the Board found  at the time of discharge. Therefore, the awarded characterization of service shall  BAD CONDUCT, the narrative reason for separation shall  COURT-MARTIAL with a corresponding separation code of JJE2, and the reentry code shall  RE-4B.  The Applicant is not eligible for further reviews by the NDRB.  The Applicant may petition the Board for Correction of Naval Records, 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 for further review using DD Form 149.  

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/.  More information is available at http://www.secnav.navy.mil/mra/CORB/pages/ndrb/default.aspx.

Additional Reviews: After a document review has been conducted, former members are eligible for a personal appearance or telephonic 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-Traumatic Stress Disorder and/or Traumatic Brain Injury: For all claims involving PTSD and/or TBI, the NDRB’s review implemented the guidance set forth in the SECDEF Memorandum of 3 September 2014 (Supplemental guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requests by Veterans Claiming Post Traumatic Stress Disorder).  In accordance with U.S. Code, Title X, Section 1553 (d)(1) & d(2), the NDRB included a member who is a physician, clinical psychologist, or psychiatrist and accorded the case sufficient priority to achieve an expedited resolution and a final decision.

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.

Military Sexual Trauma: The Department of Veterans Affairs (VA) uses the term "military sexual trauma" (MST) to refer to experiences of sexual assault or repeated, threatening sexual harassment experienced while on federal active duty, active duty for training, or inactive duty training.  To get confidential one-on-one help please contact the MST Coordinator at your nearest VA Medical Center or Call Safe Helpline at 1-877-995-5247 or visit www.mentalhealth.va.gov/msthome.asp.

Reporting Military Sexual Trauma: To report a military sexual trauma, you can make an anonymous report to the Naval Criminal Investigative Service (NCIS) by Text or Online.  The NCIS Tip Line provides service members, veterans and civilians a safe, discreet and ANONYMOUS option to report criminal and force protection threats within the USN and USMC without concerns of retaliation.  To report a crime by Text: Text  274637 (CRIMES); Type “NCIS” at the top of the message; and include as much detail as possible to ensure your tip can effectively be investigated.  To send your ANONYMOUS Tip via the online, go to https://www.tipsubmit.com/webtipsNAV.aspx?AgencyID=840.

Suicide Prevention: Veterans in emotional crisis or their loved ones can call the free and confidential Veterans Crisis Line at 1-800-273-8255 (then press 1); or chat online at http://www.veteranscrisisline.net, or send a text message to 838255 to connect with a caring, qualified Veteran Affairs Responder who can deal with any immediate crisis.