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

Docket No. MD08-01876

ex-Pvt, USMC

Current Discharge and Applicant’s Request

Application Received:  20080915
Characterization of Service Received:  UNDER OTHER THAN HONORABLE CONDITIONS
Narrative Reason for Discharge:  MISCONDUCT
Authority for Discharge:  MARCORSEPMAN 6210.3 (PATTERN OF MISCONDUCT)

Applicant’s Request:  Characterization change to:  GENERAL (UNDER HONORABLE CONDITIONS)
		       Narrative Reason change to:  NONE REQUESTED

Summary of Service

Prior Service:
Inactive: USMCR (DEP) 20001020 - 20010826  COG		Active:  NONE

Period of Service Under Review:
Date of Enlistment:  20010827	Age at Enlistment:  18
Period of Enlistment:  4 Years  0 Months
Date of Discharge:  20050321	Highest Rank:  LANCE CORPORAL
Length of Service:  03  Years  06  Months   23  Days
Education Level:  12	AFQT:  68
MOS:  3531
Proficiency/Conduct Marks (# of occasions):  NFIR / NFIR         Fitness Reports:  NOT APPLICABLE

Awards and Decorations (per DD 214): Rifle SS  NDSM GWOTSM GWOTEM SSDR NUC

Periods of UA/CONF:  NONE    SCM:  NONE    SPCM:  NONE    CC:  NONE

NJP:  3
- 20020522:	Article 121 (Larceny) 
	Article 123 (Forgery)
	Awarded: FOP RESTR EPD  Suspended:  FOP

- 20040729:	Article 92 (Dereliction in performance of duties)
	Article 121 (Larceny)
	Awarded: RIR RESTR EPD FOP  Suspended:  RESTR

- 20041020:    Article 121 (Larceny)
	Awarded: RIR FOP RESTR  Suspended:  NONE

Retention Warning Counseling:  2

-  200040730:  For lack of integrity and core values by wrongfully stealing CD’s from the Main PX

-  20041201:  For your demonstrated deficiencies and your failure to adhere to and follow rules and regulations

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:	☐

Related to Post-Service Period (cont):

	Family/Personal Status: 	☐	Community Service:  	☐	References:  		☐
              Additional Statements: 
                             From Applicant:  ☐	From Representation:         ☐	From Congress member:    ☐

                    Other Documentation:  ☐

Pertinent Regulation/Law

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

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, Articles 92 and 123.

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

Applicant’s Issues

1.  Record of service.
2.  Administrative separation board was not unbiased.
3.  Post-Traumatic Stress Disorder (PTSD) diagnosis.

Decision

Date:  20090114	DOCUMENTARY REVIEW          Location: Washington D.C.	 Representation: NONE

By a vote of 5-0 the Characterization shall remain UNDER OTHER THAN HONORABLE CONDITIONS.
By a vote of 5-0 the Narrative Reason shall remain MISCONDUCT.

Discussion

Issue 1:  (Equity)  RELIEF NOT WARRANTED.  The Applicant contends he is entitled to a discharge upgrade due to his record of service.  For the edification of the Applicant, despite a Marine’s prior record of service certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline.  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 warnings and three NJPs for violations of the Uniform Code of Military Justice (UCMJ):  Article 92 (Dereliction in the performance of duties); Article 121 (Larceny); and Article 123 (Forgery). Violation of Article 92 or Article 123 is considered a serious offense, punishable by punitive discharge and confinement if adjudicated and awarded by a special or general court-martial.  The command did not pursue a punitive discharge but instead opted for an administrative discharge.  The Board determined the awarded discharge characterization was appropriate for the number and seriousness of the offenses and an upgrade founded upon the Applicant’s record of service would be inappropriate.

Issue 2:  (Equity)  RELIEF NOT WARRANTED.   The Applicant contends he is entitled to a discharge upgrade because his Administrative Separation Board was not comprised of unbiased members.  The NDRB notes neither the Applicant nor his legal counsel filed a letter of deficiency following the board hearing.  If the Applicant did not feel his board hearing was fair at the time of the hearing, he should have submitted a letter of deficiency for consideration by the separating authority determining the Applicant’s case.  Furthermore, the Applicant has not submitted any credible evidence that supports his claim.  The NDRB therefore rejects the Applicant’s contention.  Any concerns of inequity by the Administrative Separation Board should have been addressed at the time of the board.  The NDRB determined the awarded discharge characterization was appropriate for the number and seriousness of the offenses and an upgrade founded upon the Administrative Separation Board not being comprised of unbiased members would be inappropriate at this time.

Issue 3:  (Equity)  RELIEF NOT WARRANTED.   The Applicant also submitted evidence of medical treatment through the Veteran’s Administration (VA) with his DD-293 Application.  Although not expressly requested, the NDRB reviewed the Applicant’s discharge considering whether the Applicant’s diagnosis with PTSD in any way mitigates his misconduct.  The VA records show the Applicant sought and received treatment for alcoholism and cocaine addiction, as well as for injuries suffered in a vehicle-rollover in Iraq.  The Applicant was diagnosed with PTSD on 27 August 2008, but was found to have a normal brain scan with no evidence of brain injury.  In order to establish whether PTSD is a mitigating factor to the Applicant’s misconduct, it would have been reasonable to expect the Applicant’s record of service to show a significant change in performance following the incident which caused the PTSD when compared to his performance prior to the incident.  The record of evidence does not demonstrate this occurred.  The Applicant’s in service misconduct began before his deployment to Iraq.  Furthermore, the Applicant was put on probation for six months prior to enlisting for criminal mischief.  The NDRB rejects the contention PTSD mitigates the Applicant’s misconduct.  It is clear a pattern of misconduct was established before the Applicant joined the Marine Corps and continued in the Marine Corps prior to deploying to Iraq.  The NDRB determined the 

awarded discharge characterization was appropriate for the number and seriousness of the offenses and an upgrade founded on PTSD would be inappropriate.

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

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