ex- LCpl, 

Current Discharge and Applicant’s Request

Application Received: 20160726
Characterization of Service Received:   
Narrative Reason for Discharge:   IN LIEU OF TRIAL BY COURT MARTIAL
Authority for Discharge:   MARCORSEPMAN 6419 [IN LIEU OF TRIAL BY 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:	 19900917 - 19940826  
				 19940827 - 19990801  
				 19990802 - 20030318  
				 20030319 - 20070711  

Period of Service Under Review:
Date of Enlistment:  20070712	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20090716	Highest Rank/Rate:  MSgt
Length of Service:   Year(s)     Month(s)   05 Day(s)
Education Level:  	AFQT:  38

Fitness Reports: 

Awards and Decorations (per DD 214):	Rifle  Pistol  CoC CGMUC GWOTEM GWOTSM ICM (2) JMUA JSAM (3) LoA (2) GCM (5) MCRR MM (4) NASADSM NDSM (2) NMCAM (2) MUC NUC (2) PUC SSDR (3) 

Periods of UA:  NONE
Periods of CONF:  NONE
Other Time Lost per DD214:  20080329 - 20080331, 3 days; 20090401 - 20090403, 3 days

NJP:    SCM:  

SPCM:  

- 20081024:	Article 112a (Wrongful use, possession, manufacture or introduction of controlled substance) 
	Findings: NOT GUILTY

CIVIL ARREST:     

CC:     Retention Warning Counseling:  

NDRB Documentary Review Conducted (date):	20130529
NDRB Documentary Review Docket Number:	MD13-00007
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:

	  “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 900917 UNTIL 070711”

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:

Pertinent Regulation/Law

A.  Paragraph 6419, SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 06 June 2007 until 25 November 2013.

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)(b), 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 contending that he “signed the Separation in Lieu of Trial Agreement under duress.”  
2.	The Applicant contends that he “did not fully understand the ramifications of the Separation in Lieu of Trial Agreement.”  
3.	The Applicant contends that he “withdrew from the agreement subsequent to signing the Separation in Lieu of Trial Agreement.” 
4.	The Applicant requests a change to his character of service contending that he “was denied Due Process and Fourth Amendment protection when he was processed out of the United States Marine Corps.” 
5.	The Applicant contends that his “assigned legal counsel failed to zealously represent him, and failed to inform him of significant legal issues about his case that would have substantially changed his course of action if known.”
6.	The Applicant contends the appearance of impropriety between his assigned defense counsel and his command “undermined his trust in the process and substantially affected his ability to receive reliable advice.”
7.	The Applicant requests a change to his character of service due to his post-service achievements.
8.	The Applicant’s PTSD was a mitigating factor for his misconduct (BOARD GENERATED ISSUE).

Discussion

Date:  20170912		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 two deployments in support of Operation IRAQI FREEDOM; one in 2003 and one in 2004. 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 UCMJ:  
Article 112a (Wrongful use, possession, manufacture or introduction of controlled substance)  NOT GUILTY

On 30 March 2009, the Applicant submitted his request for separation in lieu of trial by court-martial (SILT).  In the request, the Applicant exercised his right to consult with counsel, acknowledged that he fully understood the elements of the offenses for which he was charged, and was guilty of those offenses.  He certified a complete understanding of the negative consequences of his actions and that characterization of service could be Under Other Than Honorable Conditions which might deprive him of virtually all veterans benefits based upon his current enlistment. 

Issues 1-3:  The Applicant requests a change to his character of service contending that he “signed the Separation in Lieu of Trial Agreement under duress.” The Applicant also contends that he “did not fully understand the ramifications of the Separation in Lieu of Trial Agreement.”  In addition, the Applicant contends that he “withdrew from the agreement subsequent to signing the Separation in Lieu of Trial Agreement.”  The record shows that the Applicant signed the SILT the on 30 March 2009 and that it was approved by the Commanding General, Marine Air Ground Task Force Training Command, Marine Corps Air Ground Combat Center (MCAGCC) on 19 June 2009.  The Applicant provides documentation that his wife addressed her concerns of the SILT to the Applicant’s defense counsel on 08 June 2009 and that his in-laws addressed their concerns about the SILT to the Inspector General at MCAGCC, 29 Palms, CA on 09 June 2009.  The Applicant also provides a personal statement that he wrote on 26 April 2010 (over nine months after being discharged) that he signed the SILT under duress, was given only around an hour to “take the SILT or go to Special Court-Martial” and that he was not in a mental state to make such a decision since he was on new medication which made him “even more dazed and confused.”  

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.  When questioned by the NDRB, the Applicant stated that he met with his defense counsel to discuss the SILT and then did not sign it until it was faxed to his home later that day because he wanted to discuss the matter with his wife.  During the hearing, the Applicant also stated that he did not present any documentation to his Command requesting to withdraw his SILT and he did not request Mast to request his withdrawal verbally.  The Applicant provided no evidence that he “withdrew from the agreement subsequent to signing the SILT,” or that he was under duress when signing it, or that he did not fully understand its ramifications.  If the Applicant wanted to withdraw the SILT due to duress or not fully understanding its ramifications, he had over two months from the time he signed the SILT to when it was approved all the while being aware of his family’s concerns regarding the SILT.  There is insufficient evidence in the record, nor has the Applicant produced any substantial evidence, to support his contentions that he was under duress when signing the SILT, did not understand the ramifications of the SILT, or withdrew from the agreement.   The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case. 

Issues 4-6:  The Applicant requests a change to his character of service contending that he “was denied Due Process and Fourth Amendment protection when he was processed out of the United States Marine Corps.”  The Applicant also contends that his “assigned legal counsel failed to zealously represent him, and failed to inform him of significant legal issues about his case that would have substantially changed his course of action if known.” In addition, the Applicant also contends the appearance of impropriety between his assigned defense counsel and his command “undermined his trust in the process and substantially affected his ability to receive reliable advice.”  

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 Applicant’s counsel stated that he and his Applicant have never been fully aware of the specific events that led to the two charges of Article 112a of the UCMJ (Wrongful use, possession, manufacture or introduction of controlled substance) on 27 March 2009.  The Applicant’s counsel stated that the first positive urinalysis test most likely came from the Applicant while he was at MCAGCC, 29 Palms, CA and that the second violation could have been from a urinalysis test in Topeka, Kansas a few days later where the Applicant was receiving treatment (both were from methamphetamine).  The Applicant’s counsel contends that the second violation would be a violation of the Applicant’s Fourth Amendment protection because he was being medically treated when the urinalysis test was conducted.  The Applicant’s counsel also added that this would also most likely be from the same controlled substance as the urinalysis test conducted a few days earlier.  When asked by the NDRB if he could confirm this contention, the counsel stated that he could not, but was offering this contention for the NDRB’s consideration.  The Applicant’s counsel contends that there was an appearance of impropriety between the defense counsel and his command because, as stated, the Applicant was directed to see a specific defense counsel instead of going to the Staff Judge Advocate and being assigned a counsel.   When asked by the NDRB if there was any documentation to support his contention such as correspondence between the Convening Authority and the Applicant’s defense counsel, the Applicant’s counsel stated that he did not have any supporting documentation.  The Applicant’s counsel also presented several scenarios where the Applicant’s defense counsel could have better represented him to include ways he could have delayed a Court-Martial for the Applicant’s benefit.  There is insufficient evidence in the record, nor has the Applicant produced any substantial evidence, to support the contention that he was denied due Process and Fourth Amendment Protection, that his defense counsel failed to zealously represent him, or that there was impropriety between his assigned defense counsel and his command.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case. 

Issue 7:  The Applicant requests a change to his character of service due to his post-service achievements. The Applicant stated that he is a volunteer lecturer and mentor at FOCUS Marine Foundation.  He also stated that he attends the week-long program four times per year, and shares his story with other Sailors and Marines who are suffering from PTSD and TBI, and continues to follow up with them to ensure that they are getting the care and treatment they need to survive and improve.  In addition, he stated that he completed his Bachelor of Science degree, repaired his credit, and recently bought a home with his wife.  He stated that he continues to struggle with his treatment and medication, and credits FOCUS Marine Foundation with saving his life.  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.  The Board determined that the characterization of service received was appropriate considering the length of service and UCMJ violations.

Issue 8:  BOARD GENERATED ISSUE.  The Applicant’s PTSD was a mitigating factor for his misconduct.  Although this issue was addressed by counsel and the Applicant throughout the Personal Appearance Hearing, it was not specifically identified by the Applicant in writing as an issue.  The record shows that the Applicant was diagnosed with PTSD in January 2008.  In addition, the Applicant provided information to the NDRB that he is receiving treatment from the VA on a weekly basis for his PTSD and is being compensated financially by the VA for his PTSD and TBI.  

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 record shows that prior to the events that led to the Applicant’s SILT, he had already been diagnosed and was being treated for PTSD to include receiving medication to treat his PTSD.  In addition, he had already been to a Special Court-Martial and found NOT GUILTY, so he was fully aware of the ramifications of using controlled substances.  Though the Applicant may feel that PTSD was the underlying cause of his misconduct, the record reflects willful misconduct that demonstrated he was unfit for further service.  The evidence of record did not show that the PTSD was a sufficient mitigating factor to excuse the Applicant’s conduct or accountability concerning his actions.  After an exhaustive review, the NDRB determined that PTSD did not mitigate the Applicant’s misconduct.  Use of methamphetamine was a conscious decisions to violate the tenants of honorable and faithful service. 

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  UNDER OTHER THAN HONORABLE CONDITIONS, the narrative reason for separation shall  IN LIEU OF TRIAL BY COURT MARTIAL with a corresponding separation code of KFS1, 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.