ex- PVT, 

Current Discharge and Applicant’s Request

Application Received: 20160229
Characterization of Service Received:   
Narrative Reason for Discharge:   MISCONDUCT
Authority for Discharge:   MARCORSEPMAN 6210.6 [COMMISSION OF A SERIOUS OFFENSE] 

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:  20010326	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20060306	Highest Rank/Rate:  LCpl
Length of Service:   Year(s)     Month(s)   11 Day(s)
Education Level:  	AFQT:  57

Evaluation Marks (# of occasions):  Performance/Proficiency: 1.7 (5)   Behavior/Conduct: 1.7 (5)    
Fitness Reports: 

Awards and Decorations (per DD 214):	Rifle  NDSM GWOTSM  LoA

Other Time Lost per DD214:  20030422 - 20030424, 3 days (IHCA)

NJP:     SCM:  		
	
SPCM:  

- 20031024:	Article 86 (Absence without leave, etc.) 20010901-20030422, 595 days
	Article 112a (Wrongful use, possession, manufacture or introduction of controlled substance)
	Sentence: CONF 120 days   BCD
CA: Sentence approved and ordered executed except for the part of the sentence extending to the bad conduct discharge is disapproved.	 

CIVIL ARREST:      CC:       Retention Warning Counseling:  

NDRB Documentary Review Conducted (date):	20141204
NDRB Documentary Review Docket Number:	MD14-01484
NDRB Documentary Review Findings:		Proper as issued and that no change is warranted.

Administrative Corrections to the Applicant’s DD 214

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

  “2001 03 26”
	 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, should read:  “NATIONAL DEFENSE SERVICE MEDAL, GLOBAL WAR ON TERRORISM SERVICE MEDAL, RIFLE QUALIFICATION BADGE (MARKSMAN), LETTER OF APPRECIATION”
	
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:	

Pertinent Regulation/Law

A.  The Marine Corps Separation and Retirement Manual, (MCO P1900.16F, effective 1 September 2001, Paragraph 6210, MISCONDUCT.

B.  The Marine Corps Separation and Retirement Manual, MCO P1900.16F), effective 1 September 2001, paragraph 6204, DEFECTIVE ENLISTMENT AND INDUCTION.

C.  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.

D.  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 86, Absence without leave.

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

Applicant’s Issues

1.	The Applicant contends that the enlistment was erroneous, fraudulent, or void per MARCORSEPMAN due to court commitment and mental illness.
2.	The Applicant contends that the command violated the UCMJ by failing to forward the case to the Navy Marine Corps Court of Criminal Appeals (NMCCA) and the administrative separation was improperly used to address this error by the command.
3.	The Applicant contends that the command failed to address mental health and improper enlistment issues prior to administrative separation.
4.	The Applicant contends that his severe mental health issues were a mitigating factor in his misconduct.
5.	The Applicant contends that the Marine Corps failure to retrieve the Applicant even though he was at a known address resulted in him being retained beyond his EAS.

discussion

Date:  201015		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 reviewed the Applicant's record to see if they deployed in support of a contingency operation and was, as a consequence of that deployment, diagnosed with either PTSD or TBI.  A review of the record revealed that the Applicant did not deploy in support of a contingency operation, and so this case did not warrant an expedited review in accordance with U.S. Code, Title X, Section 1553(d)(1).

As a result of the Applicant’s claim that a mental health condition impacted their discharge, and in accordance with U.S. Code, Title X, Section 1553 (e)(2), 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 Naval Discharge Review Board included a member who is a clinical psychologist or psychiatrist, or a physician with special training on mental health disorders.  

The Applicant's record of service included:

  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.   When notified of administrative separation processing, the Applicant  their right to consult with a qualified counsel.  The Applicant waived his rights to submit a written statement and request an Administrative Separation Board. 

:  The Applicant contends that the enlistment was erroneous, fraudulent, or void per MARCORSEPMAN due to court commitment and mental illness.  The Applicant provided documentation that he was involuntarily admitted for mental health treatment on 11 January 2000 by the Allegheny County Court.  He did not disclose this information in his application to the armed forces.  An enlistment, induction, or period of service is fraudulent when there has been deliberate material misrepresentation, including the omission or concealment of facts which, if known at the time, would have reasonably been expected to preclude, postpone, or otherwise affect the Marine's eligibility for enlistment or induction.  However, the 

Applicant’s discharge from the Marine Corps was the direct result of his being found guilty of misconduct at a special court martial.  By majority opinion, the NDRB found that misconduct was an appropriate narrative reason for separation.  

:  The Applicant contends that the command violated the UCMJ by failing to forward his case to the Navy and Marine Corps Court of Criminal Appeals (NMCCA) and the administrative separation was improperly used to address this error by the command.  The Applicant was adjudged a Bad Conduct Discharge (BCD) following a Special Court Martial on 24 October 2003.  On 05 May 2005, the Applicant’s defense counsel requested clemency for his client based on a post-trial delay in approving the BCD as well as for consideration for mental health issues which were not presented during the trial by military judge.  The reason for the delay in attaining the required NMCCA review of the punitive discharge was not found in the record.  In response to the request for clemency, the Convening Authority disapproved the BCD and notified the Applicant that he would be processed for administrative separation on 08 August 2005.  In accordance with the Marine Corps Separation and Retirement Manual paragraph 6106.2, a prior court martial for a serious offense is not a bar to administrative separation processing on that offense.  Additionally per paragraph 6210.1, commanders are required to process Marines for separation when they are involved in misconduct.   Although, the board noted the substantial delay in the court marital proceedings, the NDRB found that the final “administrative separation proceedings” were proper in this case.

 and 4:  The Applicant contends that the command failed to address mental health and improper enlistment issues prior to administrative separation and that the Applicant’s severe mental health issues were a mitigating factor in his misconduct.  The record is silent as to why the Applicant failed to disclose his mental health condition during his enlistment.  When questioned during his court martial, he denied any illness or physical disability that prevented his return from unauthorized absence.  From the record, it is unclear when the Applicant’s Command became aware of his mental health condition.  When the Applicant’s military appointed defense counsel provided additional matters citing post-trial delay and the mental health conditions on 05 May 2005, the Convening Authority responded by disapproving the punitive BCD and processing the Applicant for administrative separation Under Other Than Honorable Conditions.  In determining discharge characterization of service, the Applicant’s conduct forms the primary basis for consideration.  The Applicant’s in-service conduct included a Special Court Martial conviction for 595 days of unauthorized absence as well as drug abuse; however, the NDRB found that the applicant’s struggle with mental health was a mitigating factor in his misconduct.  The NDRB determined that the unique circumstances of this case warranted additional consideration in the overall characterization of service and granted relief in the form of an upgrade in the characterization of service to General (Under Honorable Conditions).

5:  The Applicant contends that the Marine Corps failure to retrieve the Applicant even though he was at a known address resulted in him being retained beyond his EAS.  The Applicant testified that during his unauthorized absence that medical staff were informed of his deserter status when he received inpatient mental health care, and he was told that the Marines had been notified of his location.  The Applicant was arrested by local police after an unauthorized absence of 595 days.  During his court martial, the Applicant testified that he started work as a chef.  Additionally, he testified that he could have returned to military control if he wanted to, that there was nothing that interfered with a plan to turn himself in, and that he never attempted to surrender himself to military or civilian authorities.  The NDRB found that the Applicant’s mental health condition did not fully mitigate his extended period of absence or his drug use before and after returning to military custody.   

decision 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.

After a thorough review of the available evidence, to include the Applicant’s issues, summary of service, service record entries, and discharge process, the Board found the discharge was proper but not equitable at the time of discharge.  Therefore, the awarded characterization of service shall  GENERAL (UNDER HONORABLE CONDITIONS), the narrative reason for separation shall  MISCONDUCT with a corresponding separation code of hKd1, and the reentry code shall  RE-4 .  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.