, ex- Pvt, 

Current Discharge and Applicant’s Request

Application Received: 20190916
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:  19980526	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20040916	Highest Rank/Rate:  Cpl
Length of Service:    Year(s)    Month(s)  11  Day(s)
Education Level:  	AFQT:  82
Deployment/Operation: 

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

Awards and Decorations (per DD 214):	Rifle  (2) NDSM  

Periods of CONF:  NONE
Other Time Lost per DD214:  20001117 - 20001126, 10 days

SCM:    CIVIL ARREST:    CC:    Retention Warning Counseling:  

NJP:  

- 20001210:	Article 86 (Absence without leave, etc.) 20001116 – 20001127, 11 days  
	Awarded:    20 days (Mitigated to 20 days Restr and 20 days EPD on 20001211)     
	Suspended:      

SPCM:  

- 20010212:	Article 86 (Absence without leave, etc.)  
	Article 91 (Insubordinate conduct toward warrant, noncommissioned, petty officer) 2 specifications
	Article 92 (Failure to obey order, regulation) 2 specifications
	Article 134 (General article) (Break restriction)
	Sentence:  CONF 40 days  
	CA: The sentence is approved and except for the bad conduct discharge, ordered executed, but execution of that portion of the sentence adjudging all confinement is suspended for a period of six months from the date of trial, at which time, unless sooner vacated, the suspended portion of the sentence will be remitted without further action.      

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.	The Applicant contends his Mental Health condition was a contributing factor in his misconduct and it was not considered at the time of his misconduct or in separation proceedings.
2.	The Applicant contends his in-service and post-service conduct and achievement warrants consideration for an upgrade.

Discussion

Date:  20200723		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.  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 86 (Absence without leave, etc.) 

  for  of the UCMJ:  
Article 86 (Absence without leave, etc.) 
Article 91 (Insubordinate conduct toward warrant, noncommissioned, petty officer) (Two Specifications)
Article 92 (Failure to obey order, regulation) (Two Specifications)
Article 134 (General article)

The Applicant’s record documents a punitive conviction and punishment, as adjudged by Special Court-Martial on 12 February 2001.  The case was submitted for appellate review to the Navy-Marine Corps Court of Criminal Appeals and the findings were affirmed on 2 September 2004.

Issue1-2:  The Applicant contends his Mental Health condition was a contributing factor in his misconduct and it was not considered at the time of his misconduct or in separation proceedings.  Further, the Applicant contends his in-service and post-service conduct and achievement warrants consideration for an upgrade.

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 the Applicant’s service was 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.  In making its determination, the Board considered the Applicant’s record of service and also considered the Applicant’s personal statement in which he discussed the shame that he’s been living with over the last 15 years.  He is quite aware that he submitted his application to the NDRB five days prior to the 15 year appeal deadline.  The Applicant asserted that he doesn’t think his alcohol abuse and self-medication, and having unaddressed Mental Health issues fully excuse his past actions.  Yet, he submitted his petition to further take responsibility for his actions while recognizing there may be some benefit to him or his family should he be granted clemency.

Further in the Applicant’s personal statement, the Applicant described a difficult childhood and the onset of undiagnosed Mental Health issues.  Upon joining the Marine Corps, the Applicant stated that he initially excelled and was promoted to Corporal.  However, his Mental Health and Substance Abuse Disorder went unaddressed and resurfaced as his personal and financial well-being deteriorated and the stresses of performing as Corporal weighed on him.  Eleven days after turning 21 years of age, the Applicant indicated he was drinking excessively and battling his Depression and Anxiety, and he elected to go to Unauthorized Absence for a period of ten days in order to escape his environment.  The Applicant decided to return to duty based on his desire to remain in the Marine Corps, accept responsibility, and seek treatment for his Mental Health.  Upon return and following his NJP, his appeals for Mental Health assistance were ignored and ridiculed.  From his NJP award, the Applicant was ordered to Corrective Custody Unit (CCU) and he was again ridiculed for requesting Mental Health assistance.  Given his frustrations with not receiving help and the humiliating CCU environment, he refused to train and obey orders.  Following his premature release from CCU, the Applicant was ordered to Restriction and Extra Punitive Duties.  While on Restriction, the record indicated an Article 92 violation in that he went to an off-base restaurant in uniform, but he stated that he was going out in town to receive private counseling.  Charges for this offense, his actions at CCU, and other charges were preferred to a SPCM and the Applicant believes his Mental Health was not considered during his trial.

Since separation from service, the Applicant asserted that he has become more self-aware of his substance abuse and Mental Health.  After some initial struggles in college, the Applicant graduated with Honors with degrees in Biology and Biochemistry.  The Applicant later completed his PhD in Physiology and a Post-Doctoral Fellowship at the National Institutes of Health (NIH) in Bethesda, Maryland.  The Applicant has also authored multiple peer reviewed scientific publications, advocated in his community, and has volunteered and mentored many students.  He currently works as a Scientist at the National Cancer Institute, NIH.  The Applicant provided evidence of all college degrees, employment documents, an extensive resume, and a credit score document that indicates a score of 768.

In review of the evidence of record, the NDRB found the Applicant was subject to and found guilty at NJP for violation of Article 86.  Circumstances surrounding this offense include an 11 day Unauthorized Absence period and from this NJP, he was awarded Reduction in Rank and 20 days at CCU.  This CCU award was later mitigated to 20 days of Restriction and Extra Punitive Duties based on misconduct that occurred while assigned to CCU.  The CCU misconduct supported much of the charges that were preferred to SPCM.  At SPCM, the Applicant pled guilty and was found guilty for violations of Articles 86, 91 (Two Specifications), 92 (Two Specifications), and 134.  Circumstances for these offenses include a four-hour period of Unauthorized Absence that pre-dates his NJP Unauthorized Absence offense; while at CCU, he showed disrespect to Staff Non-Commissioned Officers by saying “I’m not going to do this stuff; I don’t care” and he refused to train; and he broke restriction by going to an off-base restaurant in uniform.  From the Record of Trial, the Applicant provided an unsworn statement and he indicated that since his enlistment two and years ago, he’s been plagued with episodes of major depression, anxiety attacks, stress, and insomnia.  He stated that he’s been unable to deal with these conditions and Mental Health professionals have not provided him enough relief.  He reported enduring five anxiety attacks while in the Marine Corps; three of which resulted in going to Unauthorized Absence.  In a separations physical of March 2001, the Applicant reported he is in good health and not taking medications, yet he marked YES to ‘frequent trouble sleeping, depression or self-worry, loss of memory or amnesia, nervous trouble of any sort, and have you ever been treated for a Mental Health condition.’  The Applicant further elaborated on this form and wrote ‘nightly sleeping trouble, reoccurring major depression phases, very high anxiety trouble (social, future, self-worry).’  The medical provider for this separations physical noted he was previously prescribed medication for a Depression Diagnosis in December 2000.

In reviewing discharges, the NDRB presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  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.  The NDRB found the evidence of record did contain sufficient mitigating or extenuating factors to offset the seriousness of the offenses for which the discharge was awarded.  Specifically, the Board found mitigation in that he was treated for in-service Depression prior to his misconduct and he further expressed his Mental Health struggles in detailed form on multiple occasions.  Additionally, the Board opined that his SPCM misconduct was relatively minor and when assessed in the totality, this misconduct did not warrant severe punishment.  Furthermore, the Applicant’s post-service was deemed meritorious and he further expression his contrition for his service while indicating he never received sufficient Mental Health treatment.  Under the principles of clemency and liberal consideration, the Board found the Applicant’s service was 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.  Furthermore, the Board determined an upgrade to the characterization of service to General (Under Honorable Conditions) is appropriate.

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  GENERAL (UNDER HONORABLE CONDITIONS), the narrative reason for separation shall  COURT-MARTIAL with a corresponding separation code of JHJ5, 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: 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.