ex- PVT, 

Current Discharge and Applicant’s Request

Application Received: 20170227
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: REQUESTED BUT NOT SPECIFIED
Reentry Code change to: REQUESTED, BUT NOT SPECIFIED

Summary of Service

Prior Creditable Service:
Inactive:	 	             	Active:	 

Period of Service Under Review:
Date of Enlistment:  20010924	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20050826	Highest Rank/Rate:  PFC
Length of Service:   Year(s)     Month(s)   12 Day(s)
Education Level:  	AFQT:  41

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

Awards and Decorations (per DD 214):	Rifle  NDSM  

Other Time Lost per DD214:  20040202-20040302, 31 days; 20020430 - 20020502, 3 days

NJP:  

- 20020625:	Article 80 (Attempts) 
	Article 91 (Insubordinate conduct toward warrant, noncommissioned, petty officer) 
	Article 92 (Failure to obey order, regulation) 2 specifications
	Article 121 (Larceny)
	Awarded: NFIR   Suspended:  NFIR  

- 20020724:	Article 86 (Absence without leave, etc.) 4 specifications
	Specification 1: 1601-2359, 20020713
	Specification 2: 0200-0400, 20020718
	Specification 3: 1200-20020713, to 1107, 20020714
	Specification 4: 0700-1400, 20020718 
	Awarded:       Suspended:      

- 20021023:	Article 90 (Assaulting, willfully disobeying superior commissioned officer) 
	Awarded:       Suspended:      

SPCM:  

- 20040503:	Article 107 (False official statements) 
	Article 121 (Larceny)
	Article 123 (Forgery) (2 specifications)
	Article 134 (General article) False pretense (4 specifications)
	Sentence: CONF 90 days (20400504-20040621, 47 days)   
	CA: The sentence is approved and except for the bad conduct discharge will be executed, however the execution of that part of the sentence adjudging confinement in excess of 60 days is suspended for a period of 6 months from the date of this action, at which time, unless sooner vacated, the suspension portion of the sentence will be remitted without further action. 

SCM:     CIVIL ARREST:    CC:     Retention Warning Counseling:  

NDRB Documentary Review Conducted (date):	20070510
NDRB Documentary Review Docket Number:	MD06-00950
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:

	  “MARCORSEPMAN 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:

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.	Mr. Williams contends he is suffering from PTSD as a result of Military Sexual Trauma (MST) that he suffered while in military confinement and desires an upgrade of his characterization so as to be eligible for Veterans’ benefits should he require ongoing treatment related to this event.
2.	Mr. Williams requests clemency on the basis that witnessing of MST after Boot Camp adversely affected his service.
3.	Mr. Williams requests clemency on the basis that his performance as a Marine was impacted by his mental illness issues and family issues
4.	Mr. Williams requests clemency on the basis that the Bad Conduct Discharge carries with it disproportionately severe consequences considering the nature of the offenses.
5.	Mr. Williams requests clemency on the basis that his post-discharge conduct warrants a discharge upgrade.

Discussion

Date:  20180425		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.  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 § 1553.

The Applicant's record of service included:

  for  of the Uniform Code of Military Justice (UCMJ): 
Article 80 (Attempts) 
Article 86 (Absence without leave, etc.)
Article 90 (Assaulting, willfully disobeying superior commissioned officer)
Article 91 (Insubordinate conduct toward warrant, noncommissioned, petty officer)
Article 92 (Failure to obey order, regulation)
           Article 121 (larceny)

  for  of the UCMJ:  
Article 107 (False official statements) 
Article 121 (Larceny)
Article 123 (Forgery)
Article 134 (General article)

The Applicant’s record documents a punitive conviction and punishment, as adjudged by Special Court-Martial on 03 May 2004.  The case was submitted for appellate review to the Navy-Marine Corps Court of Criminal Appeals and the findings were affirmed on 31 March 2005.

:  Mr. Williams is suffering from PTSD as a result of MST that he suffered while in military confinement and desires an upgrade of his characterization so as to be eligible for Veterans’ benefits should he require ongoing treatment related to this event.  The NDRB has no authority to upgrade a discharge for the sole purpose of facilitating access to VA benefits.  Regulations limit the NDRB’s review solely to a determination of the propriety and the equity of a discharge.  As such, this issue does not serve to provide a foundation upon which the NDRB can grant relief.  

Issue 2:  Mr. Williams requests clemency on the basis that witnessing of MST after Boot Camp adversely affected his service.  Mr. Williams stated he saw a drill instructor engage in nonconsensual sexual activities with other recruits; he did not report this at the time to any superior, to base police, or to a medical provider.  His testimony differs from his discussion of the topic with Dr. Cave, in which the context is more about sexual preference than about the threat of force or coercion.  She writes, “He believes there were multiple Marines who knew this man was homosexual and was engaging in sexual activity with other Marines.  Jerome was terrified that the guy would approach and proposition him.”  The event is not recounted at all in his other psychological evaluations by Dr. Dexter and Dr. Kruger despite each of these providers specifically commenting on past sexual abuse, suggesting its relative unimportance in his life.  Neither the Applicant nor Dr. Cave described any persisting trauma-related symptoms such as agitation or avoidance as a result of this experience.  The Board could find no nexus between event and the Applicant’s eventual misconduct that led to his discharge.  Without such a nexus, mitigation cannot be applied.  Relief denied.

:  Mr. Williams requests clemency based on the following factors:  his performance as a Marine was impacted by his mental illness issues and family issues; his characterization is disproportionately harsh in light of his offenses; and he has demonstrated remarkable achievements during his post-discharge life, despite numerous hurdles (i.e., his upbringing, his learning disabilities, his PTSD related to his childhood experiences and to MST in the brig, and his BCD).

Mr. Williams had a very difficult childhood.  During these formative years, he testified, he had multiple psychiatric hospitalizations, had once suffered a seizure, and was involved in criminal acts.  He did not disclose this information at his Military Entrance Processing Station or upon arrival to Boot Camp when faced with the Moment of Truth.  He presented as the most egregious case of Fraudulent Enlistment that this current NDRB has seen.  Apparently, his unsuitability for service was evident, as described by his NCO: “Everyone in our unit knew Jerome had ‘issues’…  I feel that Jerome should have received mental help while he was at Mals-31.  Even my ex wife would ask how Jerome got in the Marines.”

Mr. Williams was evaluated early in his career and found to have Adjustment Disorder with Disturbance of Conduct and Antisocial Behavior by psychologist Dr. Dexter.  These are not medical diagnoses which mitigate misconduct; these are conditions describing a person with characterological problems.  The vast majority of persons with Adjustment Disorder exhibit symptoms of depression and/or anxiety; they do not engage in willful misconduct as Mr. Williams did, deliberately malingering physical ailments in order to get out of training.  As Dr. Dexter succinctly put it in her second encounter with Mr. Williams, “The behavioral problems he has displayed are better dealt with by administrative and legal consequences.”

The Board can appreciate the argument that Mr. Williams was so grossly unsuited to being a Marine that he should have been administratively separated after his evaluation by Dr. Dexter, during the time of his multiple Unauthorized Absences, which he typically spent hiding in his closet in the barracks.  The logic follows that had he been separated then, his misconduct that led to his BCD would never have occurred.  However, it can also be construed as to his benefit that the USMC continued to employ him and tried to offer him new opportunities at which to succeed.  Indeed, Sgt Harshman wrote, “I took Jerome under my wing to help guide him as best as I could.”  

Despite the extra efforts expended on Mr. Williams, he failed to live up to the expectation of a Marine by demonstrating willful misconduct targeting a fellow Marine and disrupting the fabric of cohesion within the unit.  It was not as if Mr. Williams was entrusted with safe-keeping Sgt Hashman’s valuables and the presence of the credit card was too much temptation.  No, instead, Mr. Williams brazenly entered the Master Sergeant’s office space and rifled through his desk.  Thus, while the items (video games, pizzas) and amounts charged to Sgt Harshman’s accounts were of nominal monetary value, the disregard for his fellow Marines is egregious and thus the harsher characterization is equitable..  

The Applicant provided letters of reference and documentation regarding his employment, finances, and education and training since his discharge.  He appears to be a contributing member to society.  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.  On the one hand, his successes now demonstrate the depth of the challenges he faced – morally, mentally, intellectually – in the past and argue for mitigation.  Conversely, his ability to rise above these hurdles indicate that he had that ability all along and he merely chose not to do so while in service.  

Unfortunately, in his hearing, Mr. Williams was evasive and untruthful under questioning which further undercut any benefit the NDRB could afford him for post-service achievements.  First, he stated he did not recall his enlistment physical.  This event is a momentous occasion in the life of a young man about to commit four years of his life to the military.  None of the Board members have ever encountered a Marine or Sailor who could not recall this specific day.  A person like Mr. Williams, who had to take the ASVAB four times in order to get to the physical examination stage, would certainly recall it.  Second, he could not recall how he was caught using Sgt. Harshman’s credit cards.  He hypothesized that he signed his own name; however, the record from his court-martial clearly shows he forged Sgt. Harshman’s name.  Finally, the Board found that Dr. Dexter’s note of 30 April 2002 had clearly been altered on line 20 where the words “Bipolar Disorder” were added and yet Mr. Williams persisted in his protest that it had always been that way.

In summary, a Bad-Conduct Discharge (which is an authorized sentence at both a General Court-Martial and a Special Court-Martial) is a severe punishment, although less severe than a dishonorable discharge, and may be adjudged for one who in the discretion of the court warrants severe punishment for bad conduct even though such bad conduct may not include the commission of serious offenses of a military or civil nature.  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; a minority of members felt that Issues 3-5 when weighed together, did merit partial clemency.  However, the NDRB as a whole 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.  Relief denied.

Decision

After a thorough review of the available evidence, to include the Applicant’s issues, summary of service,  record entries, limited medical record entries, and discharge process, the Board found .  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.