ex- Pvt, 

Current Discharge and Applicant’s Request

Application Received: 20180914
Characterization of Service Received:   
Narrative Reason for Discharge:   COURT-MARTIAL
Authority for Discharge:   MARCORSEPMAN 1105 [COURT-MARTIAL] 

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

Summary of Service

Prior Creditable Service:
Inactive:			Active:	 

Period of Service Under Review:
Date of Enlistment:  20080915	Age at Enlistment:  18
Period of Enlistment:  4 Years   Extension
Date of Discharge:  20120514	Highest Rank/Rate:  LCpl
Length of Service:  03 Year(s)  07 Month(s)  06  Day(s)
Education Level:  12	AFQT:  31
Deployment/Operation: 

Evaluation Marks (# of occasions):  Performance/Proficiency: NFIR     

Awards and Decorations (per DD 214):	Rifle  NATO-ISAF(Afghanistan) ACM SSDR GWOTSM NUC NDSM CAR

Periods of UA:  NONE
Periods of CONF:  NONE
Other Time Lost per DD214:  20111123 - 20111215, 23 days

SCM:   CIVIL ARREST:   CC:  

NJP:  1

- 20110331:	Article 92 (Failure to obey order, regulation) 
	Awarded:       Suspended:      

SPCM:  1

- 20110930:	Article 81 (Conspiracy) 
	Article 92 (Failure to obey order, regulation)(X2)
	Article 112a (Wrongful use, possession, manufacture or introduction of controlled substance)
	Sentence:  40 days (23, 20111123-20111215)  
	CA: Sentence adjudged is approved.  

Retention Warning Counseling:  3

- 20100210:	For violation of Article 108.  Specifically, you were negligent in safeguarding your issued equipment and this resulted in an AN/PVS 14 being stolen.

- 20110331:	For violation of Article 92 resulting in NJP.

- 20111115:	For notification from Commanding Officer that member is not eligible for reenlistment due to illegal drug issue. 

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.

NDRB Documentary Review Conducted (date):	20150604
NDRB Documentary Review Docket Number:	MD15-00598
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 1105, DISCHARGE ADJUDGED BY SENTENCE OF COURT-MARTIAL, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F ch 2), effective 6 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)(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 his discharge is inequitable since it was based on an isolated incident in 34 months of service. 
2.	The Applicant contends that as a result of his combat experiences he developed a Mental Health condition and this condition mitigates his misconduct. 

Discussion

Date:  20200820		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 November 2009 to May 2010 in support of Operation ENDURING 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) 

  for  of the UCMJ:  
Article 81 (Conspiracy) 
Article 92 (Failure to obey order, regulation)
Article 112a (Wrongful use, possession, manufacture or introduction of controlled substance)

The Applicant’s record documents a punitive conviction and punishment, as adjudged by Special Court-Martial on 30 September 2011.  The case was submitted for appellate review to the Navy-Marine Corps Court of Criminal Appeals and the findings were affirmed on 30 April 2012. 

Issue 1-2: The Applicant contends his discharge is inequitable since it was based on an isolated incident in 34 months of service; further, the Applicant contends that as a result of his combat experiences, he developed a Mental Health condition and this condition mitigates his misconduct. 

The NDRB reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis.  If such a review reveals an impropriety or inequity, relief is in order.  Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval Service.  

Regarding the standards for determining characterization of service, an Honorable characterization of service is warranted when the quality of a member’s service generally meets the standard of acceptable conduct and performance for Naval personnel.  A General (Under Honorable Conditions) discharge is warranted when the quality of the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service record.  An Under Other Than Honorable Conditions discharge is warranted when a member engages in conduct involving one or more acts or omissions that constitute a significant departure from the conduct expected of members of the Naval Service.  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. 

In this case, the Board found clemency was warranted. In support of his issues, the Applicant, a communications Marine who was assigned to an Artillery Battalion, stated that he was involved in direct and indirect fire engagements during his combat deployment to Afghanistan.  The Applicant also indicated that he witnessed Improvised Explosive Device detonations and experienced the close loss of a fellow Marine while in combat.  The Board noted the Applicant was awarded a Combat Action Ribbon.  Following his deployment, the Applicant asserted that he had difficulty coping with his Mental Health, he reported this to his leadership, and in-turn, he was referred to a Mental Health evaluation.  The Applicant described some of his Mental Health treatment as being partly effective, but his condition clouded his judgment and diminished his motivation for continued service.  The Applicant largely rationalized that he wasn’t thinking clearly at the time of his misconduct.  Today, the Applicant stated that he is seeing a private Mental Health provider and has diagnoses of Anxiety Disorder, Panic Disorder, and Depression.  Regarding the Applicant’s current Mental Health condition, he did not provide any supporting evidence to affirm these active diagnoses.

In review of the evidence of record, the Applicant served for a period of three years and seven months of his four year service obligation.  Included in that period is eight months of post-trial processing, brig incarceration, and Appellate Leave.  During this period of service, the Applicant completed an Afghanistan deployment and was awarded the Combat Action Ribbon.  While in combat, the Applicant was in receipt of a Retention Warning Counseling for his failure to safeguard his Night Vision Goggles.  In August 2010, three months after the Applicant’s return from combat, he was referred to a Mental Health evaluation based on reports of nightmares, cold sweats, paranoia, headaches, and chest pain.  The Applicant was seen again by Mental Health with the same chief complaints nearly two months later and he was additionally married during the intervening period of time.  In March 2011, the Applicant was subject to and found guilty at NJP for violation of Article 92.  Circumstances surrounding this offense was the Applicant’s wrongful wearing of earrings in both ears while he coming through the Camp Lejeune main gate.  Following this NJP and in coordination with his chain of command, the Applicant was referred to and completed a “Back on Track” program.  In April 2011, the Applicant was treated for Post-Traumatic Stress Disorder and Depressed Mood like symptoms, and he was diagnosed with Adjustment Disorder with Depressed Mood.  The context of much of this treatment and diagnosis was attributed to the Applicant’s combat experiences.  

In September 2011, the Applicant was subject to and found guilty at an SPCM for violations of Articles 81, 92 (Two Specifications), and 112a.  The 112a violation was wrongful use of Marijuana and the Applicant described this use as casually smoking Marijuana a couple of times with his wife’s civilian friends.  The 81 and 92 violations involved the Applicant’s failures as a urinalysis observer.  Specifically, while serving in this capacity, another Marine discussed with him that he recently smoked Marijuana and asked the Applicant to provide his urine in place of the other Marine.  At the time, the other Marine was unaware that the Applicant had recently used Marijuana as well.  The Applicant agreed to provide his urine and was ultimately caught when the other Marine felt guilty and told this information to his First Sergeant.  During the Applicant’s separation physical, the Applicant continued to report difficulty with sleeping, migraines, body pain, memory loss, depression, anxiety, and panic attacks.   

In determining discharge characterization of service, the Applicant’s conduct forms the primary basis for consideration.  The Applicant’s in-service conduct included one NJP and one SPMC.  This misconduct, which was established to not be an isolated incident, was a willful failure to meet the requirements of his contract honorably.  However, the Applicant contends his Mental Health condition was a mitigating factor in his misconduct.  The Applicant’s official military service record diagnosis of Adjustment Disorder with Depressed Mood, coupled with the context of this diagnosis and parallel Mental Health treatment, support the Applicant’s contention that his Mental Health diagnosis was a mitigating factor associated with the in-service misconduct.  Moreover, the NDRB determined that the unique circumstances of this individual case, coupled with the documented Mental Health diagnosis and the Applicant’s service in combat, warranted additional consideration in the determination of overall characterization of service.  While granting liberal consideration, the NDRB found that the awarded characterization of service was inequitable and that relief in the form of an upgrade in the characterization of service to Under Other Than Honorable Conditions is warranted.  Relief to General or Honorable was not granted because the Applicant’s Mental Health diagnosis did not rise to a level that would completely absolve his misconduct and the NDRB found portions of his misconduct involved conscious and deliberate decisions.

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  COURT-MARTIAL with a corresponding separation code of JJB2, and the reentry code shall  RE-4B.  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.