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

Docket No. MD11-00364

ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20101129
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)	19900222 - 19900905  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  19900906	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  19960326	Highest Rank:  
Length of Service:    Year(s)    Month(s)  10  Day(s)
Education Level:  	AFQT:  58
MOS:  3531
Proficiency/Conduct Marks (# of occasions):   () /  ()	Fitness Reports:  

Awards and Decorations (per DD 214):	Rifle , , JUC,  (Operation Restore Hope, Somalia Africa)

Combat Operations/Expeditions:  Operation Restore Hope, Somalia (18 Dec 1992 – 13 Jan 1993 – 26 Days)

NJP:  

- 19910731:	Article  (Unauthorized absence 19910719-19910722, 4 days)
	Article 92 (Failed to obey a direct order from Commissioned Officer to report to duty)  
	Awarded:    Suspended:  

- 19911114:	Article 92 (Failed to obey a lawful order given by an NCO, not to place chevrons on his uniform)  
	Awarded:  RESTR EPD   Suspended:   RESTR

- 19930614:	Article  (Wrongful use of a controlled substance, methamphetamine)
	Awarded:     Suspended:   

SCM:  

SPCM:  

- 19930914:	Article  (Unauthorized absence 19930626-19930806, 41 days)
	Article 112 (Wrongful use of a controlled substance), 2 specifications
	Specification 1: Amphetamines/Methamphetamines on or about 19930614 
	Specification 2: Marijuana on or about 19930614 
	Sentence: CONF 6 months (19930914-19931123, 70 days)   

CC:  

Retention Warning Counseling:  

- 19910320:	For assaulting the corporal of the guard with intent to harm physically. 

- 19911114:	For frequent incidents of disobedience to verbal and written orders; unauthorized absence and financial irresponsibility.  

- 19920204:	For absence from appointed place of duty and failure to comply with command directed counseling. 

- 19930106:	For 4 pending charges on UCMJ violations being dropped because they date from August to November of 1992 and were not tried in a timely fashion.  SNM was counseled and cautioned that he has a 6105 entry in his page 11 as well as numerous page 11 entries and 2 previous NJPs.    

- 19930106:	For previous infractions in some form of being alcohol related.  Therefore, SNM will be entered into an alcohol rehabilitation program with the understanding that unsuccessful completion of the course and or further violation of the UCMJ will result in his administrative discharge from the service.    

Administrative Corrections to the Applicant’s DD 214

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

	  “MARCORSEPMAN Par. 1105”
	  “COURT MARTIAL”
	  “(4) 19910719-19910722; (41) 19930626-19930806; (70) 19930914-19931123”

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 COURT-MARTIAL, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 18 August 1995 until 31 August 2001.

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.

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

Applicant’s Issues

Decisional issues: (1) The Applicant contends that discharge and resulting characterization of service is from an isolated incident and does not accurately reflect his military service; as such, he seeks an upgrade to Honorable.  (2) The Applicant contends that he unknowingly suffered from PTSD, resultant from his service in Somalia, and that he turned to drugs to self-medicate the symptoms of this PTSD.  

Decision

Date:  20110616	              Location: Washington D.C.	 Representation: VSO

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

Discussion

In reviewing discharges, the NDRB 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.  With respect to a discharge adjudged by a 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 response to the Applicant’s request for clemency, relevant and material facts stated in a punitive trial by court-martial are presumed by the NDRB to be established facts.  The Applicant’s case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency.

The Applicant enlisted in the Marine Corps at age 17 with parental consent.  The Applicant signed the Marine Corps Policy Concerning Illegal Use of Drugs, acknowledging that he was fully aware of the Marine Corps’ policy of zero tolerance for drug abuse.  He acknowledged the consequences of violation of that policy in writing, prior to entry.  The Applicant’s record of service contains 5 paragraph 6105 retention-counseling warnings and 3 nonjudicial punishments for violations of the Uniform Code of Military Justice (UCMJ), specifically, 

•	Article 86 (Absent without authority – at least 5 separate specifications) 
•	Article 92 (Failure to obey order or regulation – 2 individual specifications)
•	Article 112(a) (Wrongful use, possession, etc of a controlled substance – methamphetamines).  

Furthermore, the Applicant’s service record reflects a conviction by Special Court-Martial for violations of the UCMJ, specifically, violation of Article 112a (Wrongful use, possession, etc of controlled substances – 2 separate specifications of wrongful use of marijuana and methamphetamines, as confirmed by naval drug lab urinalysis testing) and violation of Article 86 (Absent without leave – absenting himself from his unit, without authority, and so remaining absent for a period greater than 30 days until surrendering himself to military custody).  Violation of Article 112a is an offense requiring mandatory processing for separation, regardless of time in service or grade, and usually results in, at a minimum, administrative separation with an unfavorable characterization of discharge.  Based on the requirement to maintain good order and discipline in the service, Commanders may also pursue confinement and punitive discharge through a Special or General Court-Martial.  In this specific case, the Command chose to refer the Applicant to trial by Special Court-Martial instead of opting for the more lenient, non-punitive punishment and administrative discharge process.  

While pending trial by Special Court-Martial, the Applicant entered into a pre-trial agreement with his command; he pled guilty in a trial by judge alone to the specifications, as charged.  The Applicant was found guilty of the charges specified, was adjudged a Bad Conduct Discharge, confinement for 6 months, ordered automatic forfeiture of pay, and was reduced in rank to E-1 (Private).  Based on the pre-trial agreement, all confinement in excess of 90 days was suspended, for a period of six months, and, unless sooner vacated, would be remitted without further action.  The case was reviewed and affirmed by the U.S. Navy–Marine Corps Court of Criminal Appeals and, as such, the Bad Conduct Discharge was ordered executed.

(Decisional Issues) (Clemency/Equity) RELIEF NOT WARRANTED.  The Applicant contends that his discharge and resulting characterization of service is from an isolated incident and does not accurately reflect his military service.  The Applicant also contends that he unknowingly suffered from PTSD, resultant from his service in Somalia, and that he turned to drugs to self-medicate the symptoms.  Relevant and material facts as stated in a trial by court-martial are presumed by the NDRB to be established facts.  With respect to a discharge adjudged by a court-martial case, the action of the NDRB is restricted to upgrades based on clemency – an act of leniency that reduces the severity of the punishment imposed.  As such, the Applicant’s case was considered under the pertinent standard of equity to determine if any factors in this case merited clemency.

The Applicant contends that his discharge and the resulting characterization of service was an isolated incident and does not accurately reflect his military service.  The Applicant’s service record documents that he participated in Operation RESTORE HOPE from 18 December 1992 to 13 January 1993 (26 days) as a motor transport driver.  However, the Applicant’s service record also documents chronic misconduct - spanning the entire period of his enlistment - documented in five paragraph 6105 retention-counseling warnings, three non-judicial punishments, and a Special Court-Martial.  The Applicant’s service record further documents undisclosed pre-service alcoholism with inpatient alcohol treatment program attendance; a self-reported history of larceny; pre-service undisclosed psychological evaluation, counseling, and treatment; suicidal ideations and suicidal attempts; and almost two years of regular use of methamphetamines, weekly uses of marijuana, all coupled with chronic abuse of alcohol - which precede his deployment to Somalia.  This evidence of record was presented in trial by Special Court-Martial and was considered in determining whether retention and rehabilitation or separation was warranted and what characterization of service was warranted if separation was adjudged.  Based on the documented evidence of record, the NDRB determined that the Applicant’s misconduct of record was not an isolated incident, that separation was warranted, and that the characterization of service as adjudged, was appropriate.  As such, no relief is warranted.

The Applicant contends his misconduct was resultant from PTSD.  The government enjoys a presumption of regularity in the conduct of its affairs.  The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue.  The NDRB found no medical diagnosis in the record to support the Applicant’s claim of a diagnosis of PTSD, nor did the Applicant raise this contention as evidence toward mitigation during his trial by Special Court-Martial or provide post-service medical diagnosis by competent medical authority to support his claim for the same.  The Applicant’s military medical record does, however, indicate continued treatment and evaluations by appropriately credential mental health care providers for alcohol abuse, suicidal and homicidal ideations, a stated desire to get out of the Marine Corps, violent physical outbursts resulting in self-injury, and emotional stress related to life stressors – all prior to his 26-day deployment to Somalia.  In April 1993, the Applicant was admitted to the mental health ward at Balboa Naval Hospital for three weeks of inpatient treatment.  The Applicant was evaluated and diagnosed with: Axis I - Attention Deficit Hyperactivity Disorder (Existed Prior to Entry); Methamphetamine Delusional Disorder (resolved); Methamphetamine Dependence; Alcohol Abuse; Cannabis Abuse; Marital Problems and an Axis II diagnosis of Borderline Personality Traits.  The Applicant’s record of treatment includes no diagnosis or indications of any symptoms of PTSD. 

The Applicant may feel that PTSD is the underlying cause of his misconduct, however, the record of service clearly reflects continued, willful misconduct, both before and after his deployment, which demonstrated that he was unfit for further service.  The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions.  The Applicant’s own statements – made under oath during his trial by Special Court-Martial – include that his marijuana and methamphetamine use was without legal authority, without any legal justification, was without excuse, and that he had no reason not to be found guilty.  The NDRB conducted a thorough review of the available evidence, to include the Applicant’s pre-service drug waiver, Summary of Service and Service Record Entries, medical records, verbatim transcript of the Special Court-Martial proceeding, and the overall discharge process.  Based on the unique circumstances of this case, and the evidence of record, the NDRB determined that there was not sufficient mitigating or extenuating factors to offset the seriousness of the offenses for which the discharge was awarded.  Based on this review, the NDRB found the sentence awarded the Applicant at his court-martial was appropriate for the offenses committed and that clemency was not warranted.  

The Applicant also contends that he had been chosen to receive a Good Conduct Medal.  This is incorrect.  The confusion likely arose from Block 18 of his DD Form 214, which reset his Good Conduct Medal time counter after his last adjudicated instance of misconduct.  A Good Conduct Medal is awarded after three consecutive years of misconduct-free service.  Within the Applicant’s first three years of service, he had been found guilty of multiple offenses at three NJPs and a Special Court-Martial and had also received five retention warnings.

Summary:  After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Service and Medical Record Entries, the Verbatim Transcript of Trial by Special Court-Martial, and the issues submitted by the Applicant, the NDRB determined that clemency was not warranted.  The sentence awarded the Applicant at his Court-Martial was appropriate for the offenses he committed.  Therefore, the awarded characterization of service shall remain BAD CONDUCT DISCHARGE and the narrative reason for separation shall remain COURT MARTIAL.  The Applicant is no longer eligible for relief from the Naval Discharge Review Board due to exceeding the 15-year statutory review period.  The Applicant remains eligible to seek changes to his military record through the Board for Correction of Naval Records.  Their website is http://www.donhq.navy.mil/bcnr/bcnr.htm.

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