ex- Pvt, 

Current Discharge and Applicant’s Request

Application Received: 20161209
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: CONVENIENCE OF THE GOVERNMENT
Reentry Code change to: NONE REQUESTED

Summary of Service

Prior Creditable Service:
Inactive:	               	Active:	  

Period of Service Under Review:
Date of Enlistment:  20010910	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20060929	Highest Rank/Rate:  LCpl
Length of Service:   Year(s)     Month(s)   20 Day(s)
Education Level:  	AFQT:  74

Evaluation Marks (# of occasions):  Performance/Proficiency: 3.6 (NFIR)   Behavior/Conduct: 3.2 (NFIR)     
Fitness Reports: 

Awards and Decorations (per DD 214):	Rifle  CAR GWOTSM GWOTEM SSDR NDSM PUC 

Periods of CONF: 20041102 - 050208, 99 days
Other Time Lost per DD214:  NONE

NJP:   

- 20031029:	Article 92 (Failure to obey order, regulation)  2 specifications 
	Awarded:       Suspended:      

SCM:  

SPCM:  		

- 20041229:	Article 86 (Absence without leave, etc.) From 24 February 2004 until apprehended on 01 November 2004 (251 days) 
	Sentence:   120 days
	CA:  The sentence is approved and the ordered executed.

CIVIL ARREST:  

- 20041003:	Charges:  Aggravated Assault [Extracted from Staff Judge Advocate, 1st Marine Division (Rein) Brief Sheet of Applicant’s Discharge and letter from Commanding Officer, 5th Battalion, 11 Marines to Commanding General, 1st Marine Division, 16 August 2006]

CC:  

- 20051117:	Offense:  Aggravated Assault 
	Sentence:  375 days, 17 May 2005 – 26 May 2006 [Extracted from Applicants Individual Separation Information, page 2 and letter from Commanding Officer, 5th Battalion, 11 Marines to Commanding General, 1st Marine Division, 16 August 2006]

Retention Warning Counseling:  

- 20050209:	For violation of Article 86 of the UCMJ, Unauthorized absence from 24 February 2004 until apprehended on 03 October 2004. 

- 20051002:	For aggravated assault; separation advisement 

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:	

Pertinent Regulation/Law

A.  Paragraph 6210.6, MISCONDUCT of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), 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.

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 violation of the UCMJ, Article 128, Assaults.

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 achievements.
2.	The Applicant contends that marital, family, and child care problems impaired his ability to serve.
3.	The Applicant contends that the use of alcohol impaired his ability to serve.
4.	The Applicant contends that as a Muslim, he suffered religious discrimination that impaired his ability to serve.
5.	The Applicant requests a change to his character of service and narrative reason for separation contending that psychiatric problems impaired his ability to serve.
6.	The Applicant requests a change to his character of service contending that under current circumstances, he would not have received the type of discharge that he did because of the “differential treatment those in the service receive today compared to those who served in the past” as this relates to mental health.

Discussion

Date:  20170531		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 from February to July 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 92 (Failure to obey order, regulation) 2 specifications

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

Based on the  committed by the Applicant, the command administratively processed the Applicant for separation.  When notified of administrative separation processing, the Applicant  his rights to consult with a qualified counsel, submit a written statement, and request an Administrative Separation Board. 

:  The Applicant requests a change to his character of service due to his post-service achievements.  The Applicant stated that he has “become a law abiding citizen, community volunteer, and has secured a college education.”  He also stated that he has earned numerous trade-related licenses and certifications and provides documentation to the NDRB. 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.

:  The Applicant contends that marital, family, and child care problems impaired his ability to serve.  These problems included the death of his mother, broken marriage, his wife’s postpartum depression that caused her to attempt suicide, and his wife’s involvement in drug when he was undergoing training for combat operations.  The Applicant stated that if he would have reached out for assistance for his anxiety and depression, things would have turned out differently.  He also stated that he commanded just gave him the advice to repress everything and focus on the mission.

The Applicant contends his disciplinary problems were the result of stress caused by marital, family, and child care problems.  The NDRB recognizes that serving in the military is challenging.  Most service members, however, serve honorably and therefore earn their Honorable discharges.  In fairness to those Marines and Sailors who served honorably, Commanders and Separation Authorities are tasked to ensure that undeserving service members receive no higher characterization than is due.  
Despite the Applicant’s implications of lack of command support, he would have been aware of the numerous services available to him to provide him support for his family problems.  There is insufficient evidence in the record, nor did the Applicant provide any documentation, to indicate he attempted to use the numerous services available for service members who undergo personal problems during their enlistment, such as the Navy Chaplain, Medical or Mental Health professionals, Navy Relief Society, or Family Advocacy Programs.  The NDRB determined the Applicant’s personal problems were not mitigating factors in his misconduct.  

: The Applicant contends that the use of alcohol impaired his ability to serve.  He stated that he began to self-medicate with alcohol due to his depression from the loss of his mother, his marital problems, as coping with the aftermath of war.  Alcohol consumption is never a rationale or an acceptable excuse for inappropriate conduct, misconduct, or poor judgment.  There is insufficient evidence in the record, nor did the Applicant provide any documentation, to indicate he attempted to use the services available for alcohol treatment.  The NDRB determined the Applicant’s use of alcohol was not a mitigating factor in his misconduct.  

Issue 4:  The Applicant contends that as a Muslim, he suffered religious discrimination that impaired his ability to serve.  He stated that this caused “existential and psychological impairment of his ability to serve.” The Applicant stated that he took his wife to the naval hospital in San Diego to see a psychologist and requested a Red Cross message be sent to his command to delay his deployment so he could get his wife in rehab and find care for his child.  He stated that the hospital said that his wife’s problems were a ploy to keep him from deploying to Iraq and that this was a cover-up because he was a Muslim and that they would not send the Red Cross message. 

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.   There is insufficient evidence in the record, nor has the Applicant produced any evidence, to support the contention that the naval hospital in San Diego accused the Applicant of a cover-up not to deploy to Iraq because he was Muslim.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.

Issues 5-6:  The Applicant requests a change to his character of service and narrative reason for separation contending that psychiatric problems impaired his ability to serve.  The Applicant also requests a change to his character of service contending that under current circumstances, he would not have received the type of discharge that he did because of the “differential treatment those in the service receive today compared to those who served in the past” as this relates to mental health.  

The Applicant stated that Marines were not taught about the effects of PTSD and there was a stigma for troops that had any “mental issues” resulting from war or service.  He also stated that he (as well as others) was separated administratively for misconduct coming back from combat operations instead of receiving the proper treatment to copy with PTSD or psychological problems.  The Applicant provided post-service medical records that include diagnoses of Generalized Anxiety Disorder, PTSD, and alcohol abuse.   The Applicant further stated that when he returned from Iraq, he had problems adjusting due his PTSD.  In addition, the Applicant stated that he went UA because he had to take care of his family instead of deploying.  He further stated that when he was in the process of returning to his command, he caught his wife with another man at his home, lost control, and was arrested for aggravated assault for his threatening behavior, which led to his administrative separation. 

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.   He provides medical records, post-service, that include diagnoses of Generalized Anxiety Disorder, PTSD, and alcohol abuse.  The record shows that the Applicant was UA for over 250 days.  He provides no evidence that he attempted to contact his command during this time to resolve this situation and was not returned to his command until after he was arrested.  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.  Being UA for over 250 days and aggravated assault were conscious decisions to violate the tenants of honorable and faithful service.  The NDRB found the characterization of the Applicant’s discharge was equitable and consistent with the characterization of discharge given others in similar circumstances.  

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  MISCONDUCT with a corresponding separation code of HKQ1, and the reentry code shall  RE-4.  The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of the 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/.  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.