ex-, USMC

Current Discharge and Applicant’s Request
Application Received:  20160111
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)	19980630 - 19990120  	Active:	  19990121 – 20021011 HON
				  20021012 – 20061227 HON
Period of Service Under Review:
Date of Current Enlistment:  20061228	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20100118	Highest Rank:  
Length of Service:    Year(s)    Month(s)  21  Day(s)
Education Level:  	AFQT:  75
MOS:  0231
Fitness Reports:  

Awards and Decorations (per DD 214):	Rifle  Pistol   (2ND Awd)  (5th Awd)  (Iraq) ACM (Afghanistan)   NMUC (4TH Awd)  (3rd Awd) LoA 

Periods of UA/CONF:  

NJP:  

- 20070130:	Article  drunk and disorderly conduct on 20070114 
	Awarded:       Suspended:    (15 days)  

SCM:  

- 20091113:	Article 89 (Disrespect toward superior commissioned officer) 3 specifications
	Specification 1: By saying to him “Please tell the boot captain to shut up”
	Specification 2: By saying to him “He only cares about the shiny s_ on his collar”
	Specification 3: By saying to him “Get the f_ out of my apartment”
	Article 
	Article  
	Article  communicate a threat to Captain W_ L. W_ 
	Sentence:  
	CA: Sentence approved and ordered executed
SPCM:  

CIVIL ARREST:  

- 20070114:	Charges:  Drunk and disorderly conduct, during the arrest Sgt E_ made racial and sexual harassment comments towards officers A_ and M_. 

CC:  

Retention Warning Counseling:  

- 20080124:	For violation of Article 134, drunken disorderly conduct.

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 violations of the UCMJ, Articles 89,91,128,and 134.  

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

Applicant’s Issues

1.	The Applicant is requesting an upgrade of his discharge to be eligible for Department of Veterans Affairs (VA) benefits.
2.	The Applicant contends his discharge is inequitable because it is based on a single incident that was the product of a severe chronic mental illness.

Decision

Date:  20160323		Location: Washington D.C.	 Representation: 

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  .

Discussion

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  6105 counseling warning;    for  of the Uniform Code of Military Justice (UCMJ): Article 134 (General article, drunk and disorderly conduct); and   for  of the UCMJ: Article 89 (Disrespect toward superior commissioned officer; 3 specifications), Article 91 (Insubordinate conduct towards warrant, noncommissioned, or petty officer), Article 128 (Assault, against a superior commissioned officer), and Article 134 (General article, communicating a threat to a superior commissioned officer).  The Applicant also had a civilian arrest for drunk and disorderly conduct.  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   rights to consult with a qualified counsel and submit a written statement, but waived his right to request an administrative board.    

The Applicant’s spouse is requesting, posthumously, to upgrade the Applicant’s characterization of service at discharge.  The NDRB sends its sincere condolences and acknowledges this request is an important issue to the Applicant’s family.  Although requests to upgrade the characterization of a deceased service member are infrequent, they are not unique.  The NDRB reviews these cases in an objective manner as if the Applicant was still living; however, the board also takes into consideration that certain documentary or testimonial evidence may not be available or reasonable to obtain.

:  (Nondecisional) The Applicant is requesting an upgrade of his discharge to be eligible for Department of Veterans Affairs (VA) benefits.  There is no requirement, or law, that grants re-characterization solely on the issue of facilitating access to VA benefits.  Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing educational opportunities or employment opportunities.  Regulations limit the NDRB’s review solely to a determination of the propriety and the equity of a discharge.  As such, this issue does not serve to provide a foundation upon which the NDRB can grant relief.

:  (Decisional) ()  .  The Applicant contends his discharge is inequitable because it is based on a single incident that was the product of a severe chronic mental illness.  The Applicant’s record shows that during his current enlistment from December 2006 until January 2010 he was the subject of three separate alcohol related incidents of misconduct that resulted in his arrest by civilian authorities for drunk and disorderly conduct that was handled at NJP by his command, a page 11 counseling for drunk and disorderly conduct when he fell while drinking and had to be taken to a local hospital, and the incident that lead to his referral to a special court-martial for disrespect, assault, insubordination, and communicating a threat to a commissioned officer.  During preparation for trial, a motion was made by the Applicant’s Defense Counsel for the Army Medical Center, Department of Psychology to evaluate the Applicant at a Sanity Board Evaluation.  The determination of the expert on the Sanity Board found the Applicant did suffer from mental health conditions but that the conditions were not severe, that they did not impact his judgment, and that the Applicant was able to appreciate the wrongfulness of his conduct.  Although the Applicant was intoxicated at the time of his misconduct, this is not a condition that the NDRB considers to be a rationale or an acceptable excuse for inappropriate conduct, misconduct, or poor judgment.  Due to the results of the Sanity Board Evaluation, and other considerations, the Applicant requested a pre-trial agreement to plead guilty to all charges at a lesser summary court-martial and waive his right to an administrative board in order to avoid a possible punitive discharge from a special court-martial.  In his voluntary request for the pre-trial agreement, the Applicant accepted the conditions of his administrative separation.  Although the Applicant feels that his misconduct was caused by his mental health conditions, this issue was specifically addressed by mental health experts, legal counsel, and his command at the time of his discharge, and determined to have not impacted his ability to determine his misconduct was wrongful.  Therefore, the NDRB determined this is not an issue that merits relief.  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