ex- PVT, 

Current Discharge and Applicant’s Request

Application Received: 20160425
Characterization of Service Received:   
Narrative Reason for Discharge:   COURT-MARTIAL
Authority for Discharge:   MARCORSEPMAN 1105 [COURT-MARTIAL] 

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

Summary of Service

Prior Creditable Service:
Inactive:	 	             	Active:	 

Period of Service Under Review:
Date of Enlistment:  20010724	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20051107	Highest Rank/Rate:  PFC
Length of Service:   Year(s)     Month(s)   04 Day(s)
Education Level:  	AFQT:  78

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

Awards and Decorations (per DD 214):	Rifle  NDSM CAR (Iraq) GWOTSM GWOTEM (Kuwait/Iraq) SSDR PUC-N 

Other Time Lost per DD214:  NONE

NJP:  

- 20020412:	Article 86 (Absence without leave, etc.) 
	Article 91 (Insubordinate conduct toward warrant, noncommissioned, petty officer)
	Awarded:      Suspended:   (1 month)  (15 days)

- 20020503:	Article 86 (Absence without leave, etc.) 2 specifications 
	Awarded:   RESTR     Suspended:     

- 20040628:	Article 86 (Absence without leave, etc.) 
	Article 92 (Failure to obey order, regulation)
	Awarded:       Suspended:    

SCM:  

- 20040127:	Article 92 (Failure to obey order, regulation) 2 specifications 
	Article 111 (Drunk or reckless operation of vehicle, aircraft, or vessel)
	Sentence:  (20040127-20040219, 22 days)   
	CA: Sentence approved and ordered into execution. 

SPCM:  

- 20050112:	Article 86 (Absence without leave, etc.) 20040728-20040826, 29 days
	Article 134 (General article) Did, unlawfully enter the apartment manager office of Shadowridge Woodbend Apartments
	Sentence:  CONF 60 days (20050112-20050302, 50 days)
	CA: Sentence is approved and ordered into execution except for the Bad Conduct Discharge.  

CIVIL ARREST:  

- NFIR:	Charges:  Contributing to the Delinquency of a Minor, arrested by the SBCS [Extracted from Administrative Remarks (1070), 23 April 2002]

- NFIR:	Charges:  Drunk and Disorderly, arrested by the San Diego County Sheriff’s Department [Extracted from Administrative Remarks (1070), 27 September 2004]

CC:  

Retention Warning Counseling:  

- 20020423:	For misconduct, violation of Article 86 and 91, UCMJ. 

- 20020503:	For misconduct, violation of Article 86x2 UCMJ, from 0630-0415, 20020419 and 0600, 20020416. 

- 20020911:	For unacceptable academic performance.  Failed on three attempts to receive a passing score of 70% or above on the Job Knowledge Tests and failed to achieve a passing score on one Job Performance Test.

- 20030602:	For your first alcohol related misconduct.  Specifically, violation of Article 92 (Failure to obey order or regulation) and Article 111 (Drunken or reckless operation of a vehicle, aircraft or vessel) of the UCMJ by illegal consumption of alcohol while under the legal drinking age of 21 and driving while under the influence of alcohol on 20030602 with BAC reported as .10.  

- 20030622:	For your second alcohol related misconduct.  Specifically, violation of Article 92 (Failure to obey order or regulation) and Article 80 (Attempts) of the UCMJ by illegal consumption of alcohol while under the legal drinking age of 21.  This is clearly a direct violation of Base Order P5000.2J paragraph 3005(3) and attempting to assault a fellow Marine with a Knife. 

- 20040927:	For arrest by the San Diego County Sheriff’s Department for Drunk and Disorderly.  You were out in the area wandering around while intoxicated.     

NDRB Documentary Review Conducted (date):	20150604
NDRB Documentary Review Docket Number:	MD15-00348
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:

	  “MARCORPSEPMAN 1105”
	
The NDRB will recommend to Commander, Navy Personnel Command or Commandant of the Marine Corps 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:    

	Witness E-1:			Witness C-1: 	
	Witness E-2:			Witness C-2:
				Witness C-3:

Pertinent Regulation/Law

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 5 June 2007.

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 requests a change to his character of service due to his post-service actions and accomplishments that demonstrate his true character and potential.
2.	The Applicant requests a change to his character of service contending that his command made a material error of discretion by not properly considering his PTSD during his discharge proceedings.
3.	The Applicant requests clemency due to the trauma he suffered and its effects as a result of being sexually assaulted during his time in the Marine Corps.

Discussion

Date:  20170915		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, TBI, Military Sexual Trauma, or a mental health condition, and in accordance with 10 U.S.C. § 1553, the NDRB included a member who is a physician, clinical psychologist, or psychiatrist.  Additionally, and pursuant to § 1553, the NDRB reviewed the case with liberal consideration that PTSD, TBI, or Military Sexual Trauma potentially contributed to the circumstances resulting in the discharge of a lesser characterization.  The Applicant’s service record documents completion of a deployment in 2003 in support of Operation IRAQI FREEDOM. Pursuant to 1553 (d)(2), the service secretary expedited a final decision and accorded the case sufficient priority to achieve an expedited resolution.  

The Applicant's record of service included:

  for  of the Uniform Code of Military Justice (UCMJ): 
Article 86 (Absence without leave, etc.) 4 specifications 
Article 91 (Insubordinate conduct toward warrant, noncommissioned, petty officer)
Article 92 (Failure to obey order, regulation) 2 specifications
Article 111 (Drunk or reckless operation of vehicle, aircraft, or vessel)

  for  of the UCMJ:  
Article 92 (Failure to obey order, regulation) 
Article 111 (Drunk or reckless operation of vehicle, aircraft, or vessel)

  for  of the UCMJ:  
Article 86 (Absence without leave, etc.) 
Article 134 (General article)

The Applicant’s record documents a punitive conviction and punishment, as adjudged by Special Court-Martial on 12 January 2005.  The case was submitted for appellate review to the Navy-Marine Corps Court of Criminal Appeals and the findings were affirmed on 03 November 2005. 

Issue 1:  The Applicant requests a change to his character of service due to his post-service actions and accomplishments that demonstrate his true character and potential.  The Applicant provides documentation for two Associate Degrees in Applied Science from Rock Valley College and four other certificates from Rock Valley College in networking, advanced networking, security, and voice over internet protocol.  He also provided a certificate of membership in the Rotary Club of Cathedral City.  In addition, he provided a letter from the Volunteer Coordinator of FIND Foodbank for 50+ hours of service in 2016.

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.  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.  

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 determined that the Applicant’s post-service achievements did not warrant clemency. 

Issues 2-3: The Applicant also requests a change to his character of service contending that his command made a material error of discretion by not properly considering his PTSD during his discharge proceedings.  The Applicant stated (through counsel) that he suffered from PTSD at the time of his misconduct.  He also stated that each incident in his military record was caused by alcohol use, which the Applicant was using as a form of self-medication to treat his undiagnosed PTSD.  The Applicant included four letters from mental health treatment facilities that showed he had been treated post-service for mental health to include being diagnosed with the following:  PTSD, Bipolar II Disorder, Social Phobia, Major Depressive Disorder, and Personality Disorder Not Otherwise Specified. In addition, the Applicant requests clemency due to the trauma he suffered and its effects as a result of being sexually assaulted during his time in the Marine Corps.  The Applicant stated (through counsel) that he was “self-medicating this trauma with alcohol, which was the impetus for each incident of misconduct that led to his discharge.  

The NDRB reviewed the Applicant’s Special Court-Martial Record of Trial.  There was no reference to PTSD or military sexual trauma brought up during the trial by the Applicant, his counsel, or anyone else.  The Applicant stated to the NDRB that he did not mention his sexual assault to anyone while he was in the Marine Corps.  In addition, a Department of Veterans Affairs Rating Decision Letter sent to the Applicant on 20 January 2012 included the following:
•	The Applicant was seen by the Division Psychologist on 31 March 2005 and was diagnosed with a Relationship Related Problem as he and his girlfriend had recently broken up.
•	A Post-Deployment Questionnaire, following the Applicant’s deployment to Iraq, dated 19 September 2003, showed no evidence of a psychiatric condition.
•	The first indication of a psychiatric disorder came on 08 February2007 from the Mather’s Clinic in which a diagnosis of PTSD was given.  NOTE: a letter from the Mathers Clinic provided by the Applicant states that the Applicant was being treated for PTSD since 14 February 2007.
•	Based on the evidence of record, VA determines the Applicant was “sane” at the time he committed the UCMJ violations which led to his Bad Conduct discharge.

During the NDRB Hearing, when questioned, the Applicant was not able to explain why PTSD was a mitigating factor for his unauthorized absence of 29 days, which was one of the charges that led to his Special Court-Martial.  In addition, when questioned by the NDRB, the Applicant stated that although he had thought about it, he had not sought treatment for PTSD since 2011.  In summary, the Applicant failed to show a sufficient nexus between his PTSD and the underlying misconduct.      

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.  As stated in Issue 1 above, 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.  After an exhaustive review, the NDRB determined that PTSD or MST did not mitigate the Applicant’s misconduct.  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.   

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 JJD2, 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.