ex- Pvt, 

Current Discharge and Applicant’s Request

Application Received: 20171114
Characterization of Service Received:   
Narrative Reason for Discharge:   MISCONDUCT
Authority for Discharge:   MARCORSEPMAN 6210.3 [PATTERN OF MISCONDUCT] 

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

Summary of Service

Prior Creditable Service:
Inactive:	 	            	Active:	 

Period of Service Under Review:
Date of Enlistment:  20000327	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20040114	Highest Rank/Rate:  PFC
Length of Service:   Year(s)     Month(s)   18 Day(s)
Education Level:  	AFQT:  80

Evaluation Marks (# of occasions):  Performance/Proficiency: 4.1 (11)   Behavior/Conduct: 3.9 (11)   
Fitness Reports: 

Awards and Decorations (per DD 214):	SSDR NDSM PUC 

Periods of CONF:  NONE
Other Time Lost per DD214:  NONE

SCM:    SPCM:     CIVIL ARREST:    CC:  

NJP:  

- 20001227:	Article 92 (Failure to obey order, regulation) 
	Awarded:       Suspended:    Vacated 20010124  

- 20010205:	Article 86 (Absence without leave, etc.) 
	Article 134 (General article) Failure to train.
	Awarded:       Suspended:      

- 20010306:	Article 115 (Malingering) 
	Awarded:   21 days    Suspended:      

- 20020402:	Article 91 (Insubordinate conduct toward warrant, noncommissioned, petty officer) 
	Awarded:       Suspended:      

- 20030222:	Article 86 (Absence without leave, etc.) 
	Article 92 (Failure to obey order, regulation) 2 specifications
	Awarded:       Suspended:      

- 20030727:	Article 91 (Insubordinate conduct toward warrant, noncommissioned, petty officer) 
	Article 128 (Assaults)
	Awarded:       Suspended:      

Counseling Warning:  

- 20030716:	For NONREC for the month of August due to the NJP with suspension he received in Feb of 2003  

Retention Warning Counseling:  11

- 20001030:	For violation of Article 134, specifically SNM has been counseled on numerous occasions for various violations of the UCMJ, to wit: Sleeping in classroom/compound, failure to shave, out of uniform, and late/unauthorized absence.          

- 20001214:	For violation of Article(s) 92 of the UCMJ. 

- 20010123:	For violation of Article 92, specifically sleeping in class/on school grounds.  

- 20010125:	For violation of Article 92, specifically sleeping in class/on school grounds. 

- 20010205:	For violation of Article(s) 86 and 134 of the UCMJ. 

- 20010221:	For substandard academic performance and inability to assimilate technical materials in the AIMS Maintenance Course.  SNM performance has been below minimum acceptable academic standards and SNM has been disenrolled.    

- 20010223:	For violation of Article 115 of the UCMJ.

- 20011114:	For appearance and bearing.  

- 20011210:	For on the morning of 20011206 (Cpl L_) went to check on the RASC site, which is up for Desert Knight, Pfc B_ is in charge of the generators here and for the keeping of electrical power, on that morning when I got there at around 0730, SNM was not around I filled up the generators and had both of the 5 gal. Can filled too.  When I showed up to Pfc B_’s room in Brks 13109 at 0845, SNM told me that someone from the site told him to go to BAS and that BAS was close and the sign on the door read “BAS will be open at 0800”.  SNM said that he was going to go back but the pain was to strong and the was lying on the floor in his room.  I bought Pfc B_ to BAS and waited for him there when he was done I took him back to the RASC site on the way down there SNM reminded me of the gun that he owns and that if he was discharged from the Marine Corps that he was taking some one down with him because most likely he was going back to prison anyway, when we got there I told Sergeant in charge of the site at that time (Sgt G_) that Pfc B_ was not supposed to leave the site unless he was going to chow or to sleep at the Barracks in which case he had to show back up the next morning at 0600 in utilities.  Before I left Pfc B_ asked to talk to me and he pointed to a spot away from Sgt G_ I headed in that direction and he followed then he put his hand on my shoulder I turned around shaking his hand off and before I could tell him not to do that again, he asked me why we treated him like that and that we though he was less a man than us losing his bearing and moving his arms back and forward, then the Sergeant got in between us and told him she did not like the way he was talking to me nor his tone of voice.  Pfc B_ then told the Sergeant that he was going to lose it that one more word from her and he was going to lose it, the Sergeant then told me to go to the shop and ask Master Sergeant M_ if he could come down to the site, I did as told and Master Sergeant M_ went down there to talk to the Sergeant and to Pfc B_.   SNM was allowed to stay at the site as part of the Engineer detachment after he said that he was going to be able to control himself and that he could carry on with the mission.     

- 20020927:	For producing a pattern of misconduct. 

- 20030821	For violation of Article 92, UCMJ, SNM disobeyed a lawful order and did not adhere to the 48 hour     boundary.  Violation of Article 86, on 20030819 SNM was not at his post as the duty NCO.

NDRB Documentary Review Conducted (date):	20060427
NDRB Documentary Review Docket Number:	MD05-01381
NDRB Documentary Review Findings:		Proper as issued and that no change is warranted.

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 6210, MISCONDUCT, 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 contends that his misconduct was the result of traumatic experiences during recruit training and marine
     combat.

Discussion

Date:  20190212		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 a mental health condition, including PTSD, TBI, or Military Sexual Trauma, 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 a mental health condition, including 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 2003 to August 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:

- 20001030:	For violation of Article 134, specifically SNM has been counseled on numerous occasions for various violations of the UCMJ, to wit: Sleeping in classroom/compound, failure to shave, out of uniform, and late/unauthorized absence.          

- 20001214:	For violation of Article(s) 92 of the UCMJ. 

- 20010123:	For violation of Article 92, specifically sleeping in class/on school grounds.  

- 20010125:	For violation of Article 92, specifically sleeping in class/on school grounds. 

- 20010205:	For violation of Article(s) 86 and 134 of the UCMJ. 

- 20010221:	For substandard academic performance and inability to assimilate technical materials in the AIMS Maintenance Course.  SNM performance has been below minimum acceptable academic standards and SNM has been disenrolled.    

- 20010223:	For violation of Article 115 of the UCMJ.

- 20011114:	For appearance and bearing.  

- 20011210:	For on the morning of 20011206 (Cpl L_) went to check on the RASC site, which is up for Desert Knight, Pfc B_ is in charge of the generators here and for the keeping of electrical power, on that morning when I got there at around 0730, SNM was not around I filled up the generators and had both of the 5 gal. Can filled too.  When I showed up to Pfc B_’s room in Brks 13109 at 0845, SNM told me that someone from the site told him to go to BAS and that BAS was close and the sign on the door read “BAS will be open at 0800”.  SNM said that he was going to go back but the pain was to strong and the was lying on the floor in his room.  I bought Pfc B_ to BAS and waited for him there when he was done I took him back to the RASC site on the way down there SNM reminded me of the gun that he owns and that if he was discharged from the Marine Corps that he was taking some one down with him because most likely he was going back to prison anyway, when we got there I told Sergeant in charge of the site at that time (Sgt G_) that Pfc B_ was not supposed to leave the site unless he was going to chow or to sleep at the Barracks in which case he had to show back up the next morning at 0600 in utilities.  Before I left Pfc B_ asked to talk to me and he pointed to a spot away from Sgt G_ I headed in that direction and he followed then he put his hand on my shoulder I turned around shaking his hand off and before I could tell him not to do that again, he asked me why we treated him like that and that we though he was less a man than us losing his bearing and moving his arms back and forward, then the Sergeant got in between us and told him she did not like the way he was talking to me nor his tone of voice.  Pfc B_ then told the Sergeant that he was going to lose it that one more word from her and he was going to lose it, the Sergeant then told me to go to the shop and ask Master Sergeant M_ if he could come down to the site, I did as told and Master Sergeant M_ went down there to talk to the Sergeant and to Pfc B_.   SNM was allowed to stay at the site as part of the Engineer detachment after he said that he was going to be able to control himself and that he could carry on with the mission.     

- 20020927:	For producing a pattern of misconduct. 

- 20030821:    For violation of Article 92, UCMJ, SNM disobeyed a lawful order and did not adhere to the 48 hour                       
                        boundary.  Violation of Article 86, on 20030819 SNM was not at his post as the duty NCO.

  for  of the Uniform Code of Military Justice (UCMJ): 

- 20001227:	Article 92 (Failure to obey order, regulation) 
	Awarded:       Suspended:    Vacated 20010124  

- 20010205:	Article 86 (Absence without leave, etc.) 
	Article 134 (General article) Failure to train.
	Awarded:       Suspended:      

- 20010306:	Article 115 (Malingering) 
	Awarded:   21 days    Suspended:      

- 20020402:	Article 91 (Insubordinate conduct toward warrant, noncommissioned, petty officer) 
	Awarded:       Suspended:      

- 20030222:	Article 86 (Absence without leave, etc.) 
	Article 92 (Failure to obey order, regulation) 2 specifications
	Awarded:       Suspended:      

- 20030727:	Article 91 (Insubordinate conduct toward warrant, noncommissioned, petty officer) 
	Article 128 (Assaults)
	Awarded:       Suspended:      

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

:  The Applicant contends that his misconduct was the result of traumatic experiences during recruit training and marine
combat.  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.  Furthermore,
the NDRB did not find any reference to a medical diagnosis of PTSD in the Applicant’s service record to support his claim,
and the Applicant did not provide any documentary evidence of a medical diagnosis by competent medical authorities to
support his claim.  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.  The NDRB requested all records of
medical treatment, both active duty and post-service, from the VA.  

The records received from the VA failed to document any request for evaluation, any diagnosis, or any findings of PTSD or
other mental health concerns.  Moreover, the Applicant did not provide any evidence of a diagnosis of PTSD from any other
private mental health treatment provider to document his claim.  The NDRB found insufficient evidence in the record of any
indications of, or diagnosis for, PTSD.  Additionally, there is insufficient evidence in either the Applicant’s service record, or
the documentation he provided, that demonstrated any problems or symptoms manifesting during his enlistment from basic
training or his service while deployed in support of Operation IRAQI FREEDOM.  Furthermore, the Applicant’s record does
not document any attempts to seek help for any military stress-related symptoms while in service.  Lacking any evidence of
PTSD, the NDRB is unable to establish this contention as a basis for mitigation or consideration as an extenuating
circumstance.

The NDRB found the characterization of the Applicant’s discharge was equitable and consistent with the characterization of discharge given others in similar circumstances.  Relief denied.

If warrant the Applicant is directed to the Addendum, specifically, the paragraph regarding the U.S. Department of Veterans Affairs (VA), who determine eligibility for post-service benefits, not the NDRB.  The VA conducts its own determination of eligibility based on service records and input from an Applicant upon their request.  The Applicant should refer to the Veterans Administration website (http://www1.va.gov/opa/Is1/1.asp) for additional assistance regarding a benefit determination review.
 
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 .  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 GKA1, 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: 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.