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

Docket No. MD09-00667

ex-Pvt, USMC

Current Discharge and Applicant’s Request

Application Received:  20090130
Characterization of Service Received:  UNDER OTHER THAN HONORABLE CONDITIONS
Narrative Reason for Discharge:  MISCONDUCT
Authority for Discharge:  MARCORSEPMAN 6210.6 (COMMISSION OF A SERIOUS OFFENSE)

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

Summary of Service
Prior Service:
Inactive: USMCR (DEP)	20030805 -  20050422 COG	Active:	NONE

Period of Service Under Review:
Date of Enlistment:  20050423	Age at Enlistment:  22
Period of Enlistment:  4 Years  5 Months
Date of Discharge:  20080227	Highest Rank:  LANCE CORPORAL
Length of Service:  02  Year(s)  10  Month(s)  5  Day(s)
Education Level:  12	AFQT:  31
MOS:  0311
Proficiency/Conduct Marks (# of occasions):  4.2 (9) / 4.1 (9)	Fitness Reports:  NOT APPLICABLE
Awards and Decorations (per DD 214):	Rifle MM  CAR SSDRw/1 star GWOTEM GWOTSM NDSM ICM

NJP:  2
- 20060129:	Article 112 (Drunk on duty aboard Kilo Firm Base, Iraq)
	Awarded: RIR FOP RESTR EPD   Suspended:  RESTR EPD
- 20080201:	Article 86 (UA) 20060501 – 20071027 (544 days, apprehended)
	Awarded: RIR FOP RESTR   Suspended:  FOP

SCM:  NONE     SPCM:  NONE     CC:  NONE     Counseling: NFIR

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:  ☐

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.

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

Applicant’s Issues

1.  Husband’s “emotional health deteriorated to a point where he couldn’t function.”

Decision

Date:  20091119	DOCUMENTARY REVIEW	Location: Washington D.C.	 Representation: NONE

By a vote of 5-0 the Characterization shall change to GENERAL (UNDER HONORABLE CONDITIONS).
By a vote of 5-0 the Narrative Reason shall remain MISCONDUCT.

Discussion

The 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 Applicant’s widow is requesting an upgrade to her husband’s characterization to Honorable because her husband was murdered before he could finish his efforts to correct his military record.  The NDRB sends its sincere condolences and acknowledges this request is an important issue to the Applicant’s family.  Although requests by families to upgrade the characterization of a deceased servicemember are infrequent, they are not unique. The NDRB reviews these cases as if the Applicant was still living and in an objective manner, but takes into consideration certain documentation may not be available or reasonable to obtain.  The Applicant’s record of service included two nonjudicial punishments (NJP) for violations of the Uniform Code of Military Justice (UCMJ):  Article 86 (Absence without leave more than 30 days, apprehended after 544 days) and Article 112 (Drunk on duty, aboard Kilo Firm base, Iraq).  The Applicant was scheduled for a special court-martial, but a guilty plea at NJP was accepted.  Based on the offenses committed by the Applicant, his command administratively processed him for separation.  When processed for administrative separation, the Applicant waived his rights to submit a written statement and request an administrative discharge board, but consulted with a qualified counsel. 
   
Issue 1:  (Decisional) (Equity)  PARTIAL RELIEF WARRANTED.  The Applicant’s widow requested an upgrade in her husband’s characterization to Honorable because her husband’s “emotional health deteriorated to a point where he couldn’t function.” She further states her husband was a changed man after two tours in Iraq, and after learning “his unit would be returning to Iraq he confided in me that he couldn’t do it.”  “This was the real reason he failed to report for duty and was discharged under other than honorable conditions.”  After he was discharged, the Applicant’s mental problems became worse, but he was finally able to schedule an appointment with the U.S. Department of Veterans Affairs (VA) on 23 May 2008, for his mental issues.  Unfortunately, the Applicant was murdered on 15 June 2008.  The Applicant’s widow provided copies of her husband’s death certificate and VA medical records.  The NDRB reviewed the Applicant’s medical records, including his post-deployment health assessments after his tours in Al Anbar and Fallujah, Iraq.  In his separation physical, the physician noted the Applicant had depression, insomnia and hyperlipidemia (high cholesterol and triglycerides), but there was no mention of post-traumatic stress disorder (PTSD).  The VA assessed the Applicant with dyslipidemia (a form of hyperlipidemia), obesity, high liver function tests (LFTs), PTSD/depression/ insomnia/problems with anger management, alcohol/smoking history, tinnitus, and a history of traumatic brain injury (TBI).  

For the information of the Applicant’s widow, an Honorable characterization is warranted when the quality of a member's service has met the standards of accepted conduct and performance of duty for military personnel.  A General (Under Honorable Conditions) characterization is appropriate if the member's service has been honest and faithful but significant negative aspects of the member's conduct or performance outweighs positive aspects of the member's military record.  In this case, the NDRB noted the Applicant did serve two tours in a combat environment, was diagnosed by the VA with PTSD and TBI, and that his service record distinctly reflects the deterioration of his outstanding performance following combat tours. The NDRB opined the Applicant’s PTSD was a mitigating factor in his extended unauthorized absence (UA), which ended by apprehension and not voluntarily.  However, the Applicant’s widow provided no documentation to account for the time her husband was UA or if he had sought treatment during this period.  The Board determined the Applicant's conduct, which forms the primary basis for determining the character of his service, reflected a significant departure from the conduct expected of a servicemember.  After a careful review of the Applicant's medical documentation and official service record, and the facts and circumstances unique to this case, the NDRB determined partial relief is warranted based on equitable grounds.  The NDRB voted unanimously to upgrade the discharge characterization to General (Under Honorable Conditions), but not change the narrative reason for separation.  An upgrade to Honorable, as requested, was not considered appropriate given the extent of the member’s disciplinary history.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service, medical and service record entries, and discharge process, the Board found the discharge was proper and equitable at the time of discharge.  However, based on equitable grounds, the awarded characterization of service shall change to GENERAL (UNDER HONORABLE CONDITIONS) and the narrative reason for separation shall remain MISCONDUCT.

The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of his discharge.  The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews, Automatic Upgrades, and Post-Service Conduct.

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.”

Additional Reviews:  After a document review has been conducted, former members are eligible for a personal appearance 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 Association of Service Disable 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 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 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:  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 BCNR can make changes to reenlistment codes.  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-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

Key:	NFIR - Not Found In Record 	UA – Unauthorized absence	NJP – Non-judicial punishment	SCM – Summary court-martial
	SPCM – Special court-martial	FOP – Forfeiture of pay	RIR – Reduction in rank	EPD – Extra Duties
	CONF – Confinement	CC - Civilian conviction	CCU - Correctional Custody Unit	BW – Confinement on bread and water

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