Title: DEPARTMENT OF THE NAVY
Author: CAP
Last saved by: jennifer.miles
Company: NCPB

Docket No. MD10-00324

ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20091106
Characterization of Service Received:  
Narrative Reason for Discharge:  AS A RESULT OF COURT-MARTIAL (SPCM) OTHER
Authority for Discharge:  MARCORSEPMAN 

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

Summary of Service

Prior Service:
Inactive:	USMCR (DEP)	19910711 - 19911202  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  19911203	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  19950816	Highest Rank:  
Length of Service:    Year(s)    Month(s)  14  Day(s)
Education Level:  	AFQT:  36
MOS:  3531
Proficiency/Conduct Marks (# of occasions):   () /  ()	Fitness Reports:  

Awards and Decorations (per DD 214):	Rifle   JUC

Period of CONF:  19940408-19940507 (29 days)

NJP:  

- 19930513:	Article  (UA from place of duty 0600-0730, 19930429)
	Awarded:     Suspended:  

- 19940225:	Article  (Wrongful use, possession, etc of controlled substance, 2 specifications)
	Specification 1: (Wrongful use of meth/amphetamine, o/o 19931013)
	Sepcification 2: (Wrongful use of marijuana, o/o 19931013)
	Awarded:     Suspended:  

SCM:  

SPCM:  

- 19940408:	Article  (Wrongful use of controlled substance, marijuana, b/w 19940210-19940223)
	Sentence:   

CC:  

Retention Warning Counseling:  

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

	 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, should read:  “M16 Sharpshooter Badge, National Defense Service Medal, Joint Unit Commendation Award, Armed Forces Expeditionary Medal”

The NDRB will recommend to the Commandant of the Marine Corps that the DD 214 be corrected as appropriate.

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:		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:	

Pertinent Regulation/Law

A.  Paragraph 1105, DISCHARGE ADJUDGED BY SENTENCE OF COURTS-MARTIAL, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16D), effective 27 June 1989 until 17 August 1995.

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.

C.  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.

D.  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 112a.

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

Applicant’s Issues

1.	Applicant contends he suffers from PTSD and requests a review for upgrade.

Decision

Date:  20110113		Location: Washington D.C.	 Representation: 

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

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.  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.  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.  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 identified one decisional issue for the Board’s consideration.  The Board completed a thorough review of the circumstances that led to  discharge and the discharge process to ensure  discharge met the pertinent standards of equity and propriety.  The Applicant’s record of service included   for  of the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave, 0600-0730, 29 Apr 1993) and Article 112a (Wrongful use possession, etc of controlled substance, 2 specifications: marijuana use o/o 13 Oct 1993; meth/amphetamine use o/o 13 Oct 1993 as evidenced by NAVDRUGLAB test results) and   for  of the UCMJ: Article 112a (Wrongful use, possession, etc of controlled substance, marijuana, b/w 19940210-19940223).  The Applicant also had a pre-service waiver for undetermined specific illegal drug use prior to entering the Marine Corps.  Based on the Article 112a violation in service, processing for administrative separation is mandatory.  The Applicant’s service records are incomplete, but after a detailed review, the Board surmised that the Applicant may have been the subject of mandatory administrative processing for separation due to positive urinalysis results for meth/amphetamine and marijuana in Oct 1993 and a separation medical exam dated 15 Mar 1994.  It is likely that the Applicant was subsequently referred to trial by special court-martial after he tested positive for marijuana again in Feb 1994.  If found guilty of violating UCMJ Article 112a during trial by special court-martial, the maximum punishment authorized is confinement for up to two years and a Bad Conduct discharge.

:  (Decisional) ()  .  The Applicant contends he suffers from PTSD and requests a review for upgrade.  The Board conducted a very detailed review of the Applicant’s service and medical records to ascertain whether his claim of suffering from the effects of PTSD could be substantiated.  The records indicate that the Applicant served in Somalia from December 1992 to March 1993 while assigned to 1st Battalion, 7th Marine Regiment, 1st Marine Division as a motor vehicle operator.  There are no significant medical record entries until 10 Jan 1994 when the Applicant was evaluated at the 29 Palms Battalion Aid Station for issues related to his difficulty in breathing, numbness all over the body, and stress level.  He exhibited elevated heart beat and respiration rates and increased systolic blood pressure.  He stated to medical personnel he was anxious over personal problems due to his recent positive urinalysis test results for THC and meth/amphetamine.  Medical personnel diagnosed him with an anxiety reaction and referred the Applicant to mental health for further evaluation of a possible anxiety disorder.  The 29 Palms Naval Hospital (NAVHOSP) Mental Health Unit (MHU) evaluated him the same evening and observed “atypical chest pain with symptoms suggestive of panic attack with hyperventilation.”  The MHU then scheduled the Applicant for a follow-up psychological consult the next day.  The records revealed that the Applicant failed to show up for this follow-up exam and personnel were unable to reschedule him.

The next entry in the Applicant’s medical record, 14 Mar 1994 at the 29 Palms NAVHOSP, indicated the Applicant exhibited suicidal ideation and stated “I just needed to talk to someone.”  He was evaluated by a mental health physician the same evening where he again voiced his anxiety over pending legal issues related to his illegal drug use.  He stated he feared going to the brig and being separated from his 17-year-old wife of six months.  After confirming no suicidal or homicidal intent, the doctor released the Applicant to his command fit for duty, but with instructions for follow-on care.  Three weeks later, the Applicant stood trial at special court-martial where he was found guilty of violating UCMJ Article 112a and was sentenced to reduction in rank to E-1, confinement for 30 days, and a Bad Conduct discharge.

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.  After exhaustive examination of all the available evidence and noting that the Applicant failed to provide any substantive, verifiable evidence to support his claim, the Board determined this issue to be without merit and did not provide a basis for which relief could be granted.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service,  record entries, and punitive separation as a result of trial by special court-martial, the Board found the discharge was proper and equitable.  Therefore, the awarded characterization of service shall   and the narrative reason for separation shall remain .

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 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), 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 - Nonjudicial 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