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

Docket No. MD10-00551

ex-Pvt, USMC

Current Discharge and Applicant’s Request

Application Received:  20091204
Characterization of Service Received: (per DD 214) UNDER OTHER THAN HONORABLE CONDITIONS
Narrative Reason for Discharge: (per DD 214) IN LIEU OF TRIAL BY COURT MARTIAL
Authority for Discharge: (per DD 214) MARCORSEPMAN 6419 [IN LIEU OF TRIAL BY COURT MARTIAL]

Applicant’s Request:	Characterization change to: GENERAL (UNDER HONORABLE CONDITIONS) OR HONORABLE
	Narrative Reason change to: REQUESTED, BUT NOT SPECIFIED

Summary of Service

Prior Service:
Inactive:	USMCR (DEP)	20060428 - 20060515  COG	Active:	NONE

Period of Service Under Review:
Date of Current Enlistment:  20060516	Age at Enlistment:  21
Period of Enlistment:  4 Years  0 Months
Date of Discharge:  20071213	Highest Rank:  PRIVATE
Length of Service:  01  Year  06  Months  28  Days
Education Level:  12	AFQT:  85
MOS:  0311
Proficiency/Conduct Marks (# of occasions):  3.4 (NFIR) / 2.2 (NFIR)	Fitness Reports:  NOT APPLICABLE

Awards and Decorations (per DD 214):	Rifle MM  GWOTSM NDSM

Periods of UA/CONF:  	20061208-20070106 (30)
				20070213-20070514 (91)				
				20070730-20070804 (6)
				20070814-20070926 (44)
				20070927-20071004 (8)

Periods of CONF:  	20070518-20070718 (62)

NJP:  1

- 20061201:	Article 86, 3 specifications
	Specification 1:  In that SNM, did, on or about 2 Nov 2006, without authority, absent himself from his 		                   place of duty, to wit: field-day formation
	Specification 2:  In that SNM, did, on or about 8 Nov 2006, without authority, absent himself from his 
		                   place of duty and remained absent until on or about 2100 on 8 Nov 2006
	Specification 3:  In that SNM, did, on or about 8 Nov 2006, without authority, absent himself from his 
	                            place of duty, to wit: the Headquarters and Service Company office
	Article 91, Contempt, disrespect toward noncommissioned officer
	Article 92, Failure to obey order or regulation (distributed alcohol to Marines under the legal age to drink)
	Awarded: FOP RESTR EPD  Suspended:  FOP

SCM:  1

- 20070727:	Article 86, SNM did, on or about 9 Jan 2007, without authority, absent himself from his 		                   unit and did remain so until on or about 13 Feb 2007 (35 days)
	Article 112a, Wrongful use of controlled substances; marijuana (Concentration NFIR)
	Sentence: CONF 30 days FOP

SPCM:  NONE

CC:  NFIR

Retention Warning Counseling:  NFIR

Administrative Corrections to the Applicant’s DD 214

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

	Block 12a, Date Entered AD This Period, should read: “2006   05   16”
	Block 12c, Net Active Service This Period, should read: “01     06     28”
	
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 6419, SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL, 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 IV, Para 403m(7)(b), 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.

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

Applicant’s Issues

1.	Restore VA survivor benefits and permit the conversion of Service-members’ Group Life Insurance to Veterans’ Group Life Insurance
2.	Discharge was improper because he was diagnosed with bipolar disorder prior to separation from the military and, therefore, should have been discharged for medical reasons.  

Decision

Date:  20110203	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 IN LIEU OF TRIAL BY COURT MARTIAL.

Discussion

The term “Applicant” refers to the service member affected by the discharge regardless of whether the service member is living or deceased.  In this case, the former service member’s mother is requesting an upgrade to her son’s characterization to General (Under Honorable Conditions) or Honorable because he is now deceased.  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 former service member 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 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 record of service did not include any 6105 counseling warnings.  However, it did include one non-judicial punishment for violations of the Uniform Code of Military Justice (UCMJ): Article 86 (Unauthorized absence; 3 specifications), Article 91 (Insubordinate conduct toward a noncommissioned officer, 1 specification), and Article 92 (Failure to obey an order or regulation, 1 specification).  It also included one summary court-martial for violations of the UCMJ: Article 86 (Unauthorized absence, 1 specification) and Article 112a (Wrongful use of a controlled substance, marijuana/concentration NFIR).  The Applicant had a pre-service drug waiver for using marijuana ten times prior to entering the Marine Corps.  On 28 April 2006, he acknowledged his complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs.  On 19 October 2007, the Applicant submitted a request for separation in lieu of trial by court-martial.  In the request for discharge, he noted that his counsel had fully explained the elements of the offenses for which he was charged and that he was guilty of the offenses.  He certified a complete understanding of the negative consequences of his actions and that characterization of service could be Under Other Than Honorable Conditions.  His command approved his request and administratively processed him for separation.

Issue 1:  (Non-decisional) The Applicant desires restoration of his veterans’ survivor benefits and the opportunity to exercise the option to convert his SGLI to VGLI.  The U.S. Department of Veterans Affairs determines eligibility for post-service benefits, not the NDRB.  There is no requirement, or law, that grants re-characterization solely on the issue of obtaining veterans' benefits, and this issue does not serve to provide a foundation upon which the NDRB can grant relief.  The Board has no authority to upgrade a discharge for the sole purpose of receiving veterans’ benefits.  Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.  

Issue 2:  (Decisional) (Propriety)  RELIEF NOT WARRANTED.  The Applicant contends his discharge was improper, because he was diagnosed with bipolar disorder prior to separation from the military and, therefore, should have been discharged for medical reasons.  The Applicant further contends the command should have conducted a Competency Review Board (CRB) to determine if he was fit to stand trial, and he should not have been allowed to agree to separation in lieu of trial by court-martial.  When reviewing a discharge, the NDRB does consider the extent to which a medical problem might affect a service member’s performance and ability to conform to the military’s standards of conduct and discipline.  However, in this particular case, the NDRB does not consider the circumstances surrounding the Applicant’s mental condition to be of sufficient nature to exculpate his misconduct.  While the Applicant might feel his medical condition was a factor contributing to the misconduct, there is no indication that he could not distinguish between right and wrong and his record clearly reflects a disregard for the requirements of military discipline.  Medical documentation submitted by the Applicant reflects he was diagnosed with personality disorder and adjustment insomnia.  According to regulations, service members can be separated for personality disorder only if, due to personality disorder, the service member’s ability to function effectively in the military environment is significantly impaired and if no other basis for separation applies.  In the Applicant’s case, at least three other bases for separation could have been applied: Pattern of Misconduct, Commission of a Serious Offense, and Drug Abuse.  Therefore, he would not have qualified for separation due to a personality disorder, because separation for misconduct takes precedence over separations for personality disorders or medical reasons.  Regarding CRBs, they are convened if it appears to a commander considering the disposition of charges that the accused lacks the mental responsibility for any offense charged or lacks the capacity to stand trial.  On 17 October 2007, charges against the service member were preferred for court-martial.  On 19 October 2007, the Applicant requested separation to escape trial by court-martial, which, in accordance with regulation, requires the accused, not the command, to initiate the request.  On 13 November 2007, his Commanding Officer endorsed his request recommending approval.  The Commanding General approved the Applicant’s request on 30 November 2007, eliminating the requirement for a trial.  Because there was no longer a need for a trial, it was no longer necessary to hold a CRB to determine if the Applicant was mentally capable to stand trial.  The NDRB discerned no impropriety in the discharge process.  Relief denied.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service, service record entries, and discharge process, the Board found the discharge was proper and equitable. Therefore, the awarded characterization of service shall remain UNDER OTHER THAN HONORABLE CONDITIONS and the narrative reason for separation shall remain IN LIEU OF TRIAL BY COURT MARTIAL.

The Applicant, through a qualified representative, 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 paragraph titled Additional Reviews.

 

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