Title: DEPARTMENT OF THE NAVY
Author: CAP
Last saved by: janet.goode
Company: NCPB

Docket No. MD08-01848

ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20080902
Characterization of Service Received:  
Narrative Reason for Discharge:  
Authority for Discharge:  MARCORSEPMAN 

Applicant’s Request:  Characterization change to:  
		       Narrative Reason change to:  

Summary of Service

Prior Service:
Inactive: USMCR (DEP) 20031002 - 20040808  		Active:  

Period of Service Under Review:
Date of Enlistment:  20040809	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20070501	Highest Rank:  
Length of Service:    Years    Months   23  Days
Education Level:  	AFQT:  67
MOS:  0811
Proficiency/Conduct Marks (# of occasions):   () /  ()         Fitness Reports:  

Awards and Decorations (per DD 214): Rifle   (Iraq)  ICM (Iraq)  

Periods of UA/CONF:      SCM:     SPCM:      CC:  

NJP:  
- 20060127:  Article 91, 2 specifications:
		- Specification 1: Disrespect toward an NCO.
		- Specification 2: Disrespect toward a SNCO.
                     Article 92, 2 specifications:
		- Specification 1: Failure to obey a lawful order.
		- Specification 2: Failure to obey a lawful general order.
                    Awarded:       Suspended:   for 1 month

- 20070112:  Article 112a (Drug abuse - Vicodin)
                     Article 92 (Failure to obey a lawful general order)
                     Awarded:   ORAL      Suspended:  

- 20070322:  Article 92 (Fail to obey a lawful general order)
                     Awarded:      Suspended:   

Retention Warning Counseling:  

- 20070112:	For punishment awarded from a Battalion Level nonjudicial punishment proceeding dated 20070112.  The violation was for one specification of Article 92 and Article 112a of the UCMJ.  Failure to obey order or regulation, wrongful use of a controlled substance.

- 20070322:	For pattern of misconduct.

Types of Documents Submitted/reviewed

Related to Military Service: 
              DD 214:  	                            Service/Medical Record:             Other Records:  

Related to Post-Service Period:	
	Employment:			Finances:			Education/Training:	
	Health/Medical Records:		Substance Abuse:			Criminal Records:	
	Family/Personal Status: 		Community Service:  		References:  		
              Additional Statements: 
                             From Applicant:  	From Representation:         	From Congress member:    

                    Other Documentation:   DD Form 149

Pertinent Regulation/Law

A.  The Marine Corps Separation and Retirement Manual, (MCO P1900.16F, effective 1 September 2001 until Present, 
Paragraph 6210, MISCONDUCT.

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs, Part V, Para 502, Propriety and Para 503, Equity.

C.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 86, 92 and 112a.

DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

1.  Education benefits.
2.  Discharge should have been based on suicide attempt due to Post Traumatic Stress Disorder (PTSD).

Decision

Date:  20090107                  Location: Washington D.C.	 Representation: 

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  MISCONDUCT.

Discussion

:  either  which the Board cannot form the basis of relief for the Applicant, or  the Board does not have the authority to grant the relief for which the Applicant petitioned.  The Applicant is directed to the Addendum, specifically the paragraph concerning , regarding .

:  ()  .  The Applicant claims he should have received a medical discharge for an attempted suicide vice for a pattern of misconduct because he was suffering from PTSD due to injuries received from an Improvised Explosive Device (IED) blast in Iraq.  In reviewing discharges, the Board 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.  The Applicant’s record of service was marred by two retention warning and three NJP’s for violations of the Uniform Code of Military Justice (UCMJ):  Article 91 (Disrespect toward a superior noncommissioned officer); Article 92 (Disobeying a lawful order); and Article 112a (Drug use, wrongful use or possession of a controlled substance). Violations of Article 91, 92, or 112a are considered a serious offense.  The NDRB advises the Applicant certain serious offenses warrant separation from the service in order to maintain proper order and discipline.  Violation of Article 112a is one such offense requiring mandatory separation regardless of time in service or grade.  Violations of this policy result in, at a minimum, mandatory processing for an administrative separation which usually results in an unfavorable characterization of discharge or, at a maximum, a punitive discharge and possible confinement if adjudicated and awarded as part of a sentence by a special or general court-martial.  The command did not pursue a punitive discharge but instead opted for an administrative discharge.  

The Applicant appears to understand he was discharged for a pattern of misconduct.  The Applicant also appears to understand he was being processed for separation due to medical reasons.  The record of evidence clearly shows the Applicant was discharged with a primary basis of drug abuse and does not show any steps were ever taken to separate him for any medical reason.  Furthermore, even if evidence of medical separation processing existed, that process would have been cancelled due to misconduct by the Applicant.  In the Applicant’s case, his abuse of a controlled substance would have halted any medical separation processing.  

The Applicant’s contention also includes claims of suicidal actions or ideations he claims were caused by PTSD from an IED blast.  He also claimed a history of “Sleepwalking”.  These contentions were considered by the NDRB in reviewing his discharge.  For clarity, the two issues will be addressed separately below:

In response to the Applicant’s contention he was diagnosed with PTSD, the record of evidence clearly refutes this contention.  In a letter dated 13 April 2007, the Battalion Medical Officer, after consulting with the attending psychiatrist, explicitly states the Applicant suffers from “Strong Cluster B traits (dramatic or erratic behavior) and not to PTSD.” Furthermore, although the Applicant is variously diagnosed with “Sleepwalking Disorder”, “Adjustment Disorder” and “Anxiety Disorder”, there is no mention in the Applicant’s medical record of any diagnosis of PTSD.  The NDRB did note the Applicant was recommended for administrative separation following his diagnosis with “Sleepwalking Disorder” on 19 July 2005.  However, this recommendation was not followed by the Applicant’s command.  The explanation for this inaction 

is contained in the Battalion Commander’s letter recommending administrative separation for misconduct dated 28 March 2007:

	“…In an effort to avoid deployment, Pvt Spaulding claimed that he had childhood history of sleepwalking and a sleepwalking incident that occurred as a Marine.  Based on his statement, he convinced a psychiatrist that it was true. Suspecting deceit, his battery commander contacted Pvt Spaulding’s father and learned that Pvt Spaulding did not have a history of sleepwalking. Moreover, the incident in the Marine Corps was not verifiable. When confronted with the truth, Pvt Spaulding recanted…” 

In response to the Applicant’s contention he should have been discharged due to suicidal actions or ideations, the record of evidence again does not support the Applicant’s contention.  The Applicant was seen by medical personnel on 31 August 2005 because of a claimed suicide attempt while at home on pre-deployment leave on 16 August 2005.  The Applicant’s battery commander again contacted the Applicant’s father regarding this claim and determined it was also a fabrication to avoid deployment.  The Applicant subsequently deployed to Iraq and served well.  Before the Applicant’s unit was to deploy again, the Applicant made a suicidal gesture by consuming an unknown quantity of Ambien and Vicodin. The record of evidence again shows this was merely an effort to avoid deployment, as explained by the Battalion Commander in his letter dated 28 March 2007:

	“The attending psychiatrist diagnosed him as having an Adjustment Disorder, in addition to Strong Cluster B traits (dramatic or erratic behavior). The doctor also stated that PFC Spaulding was surprised that he almost succeeded in killing himself. There is some question as to how many pills he took and the authenticity of the attempt or gesture. Upon being told he would not deploy, PFC Spaulding exhibited no suicidal tendencies. Later, PFC Spaulding stated to me that he attempted suicide to avoid deployment.”

The NDRB determined the record of evidence clearly shows the Applicant used attempted suicide as an attempt to avoid deploying with his unit on two occasions. Additionally, the Applicant’s contention he suffers from PTSD is not supported by the record of evidence.  The Board determined the awarded discharge characterization was appropriate, and an upgrade based on the Applicant’s purported PTSD or suicidal attempts would be inappropriate.

After a thorough review of the available evidence, to include the Applicant’s Summary of Service,  Record, Discharge Process and evidence submitted by the Applicant, the Board found 

ADDENDUM:  Information for the Applicant

Complaint Procedures:  If you believe that 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.”

Additional Reviews:  Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years from the 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.  If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

Service Benefits:  The Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board.  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 Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.  

Reenlistment/RE-code:  Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to change a reenlistment code.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.  Additionally, the Board 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 subsequently is processed for an administrative involuntary separation or is referred to a court-martial for misconduct, the disability evaluation is suspended.  The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings.  If the action includes either a punitive or administrative discharge for misconduct, 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 Board for Correction of Naval Records can grant this type of narrative reason change.

Automatic Upgrades - There is no law or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving Naval service.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge 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.  Examples of documentation that may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  

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 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

Key:	NFIR - Not Found In Record 	UA – Unauthorized absence	NJP – Nonjudicial punishment	SCM – Summary court-martial
	SPCM – Special court-martial	FOP – Forfeiture of pay	RIR – Reduction in rank	EPD – Extra Duties
	CONF – Confinement		B&W – Confinement on bread and water			CC - Civilian conviction

Key:	NFIR - Not Found In Record 	UA – Unauthorized absence	NJP – Nonjudicial punishment	SCM – Summary court-martial	
	SPCM – Special court-martial	FOP – Forfeiture of pay	RIR – Reduction in rank	EPD – Extra Duties 
	CONF – Confinement		B&W – Confinement on bread and water