Title: DEPARTMENT OF THE NAVY
Author: CAP
Last saved by: lois.rojas
Company: NCPB

Docket No. MD11-00570

ex-Pvt, USMC

Current Discharge and Applicant’s Request

Application Received:  20110104
Characterization of Service Received: (per DD 214) BAD CONDUCT DISCHARGE
Narrative Reason for Discharge: (per DD 214) COURT-MARTIAL
Authority for Discharge: (per DD 214) MARCORSEPMAN 1105 [COURT-MARTIAL]

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

Summary of Service
Prior Service:
Inactive:	USMCR (DEP)	20020830 - 20020922  COG	Active:	NONE

Period of Service Under Review:
Date of Current Enlistment:  20020923	Age at Enlistment:  19
Period of Enlistment:  4 Years  0 Months
Date of Discharge:  20070828	Highest Rank:  LANCE CORPORAL
Length of Service:  04  Year(s)  11  Month(s)  6  Day(s)
Education Level:  12	AFQT:  41
MOS:  1345
Proficiency/Conduct Marks (# of occasions):  4.0 (NFIR) / 3.6 (NFIR)	Fitness Reports:  NOT APPLICABLE

Awards and Decorations (per DD 214):	Rifle MM, ICM, GWOTEM (Iraq), SSDR (2), GWOTSM, NDSM, NUC, LoA

NJP:  3
- 20040129:	Article 86 (Absent without leave; specifically - failure to go to appointed place of duty)
	Awarded: FOP RESTR EPD      Suspended:  FOP RESTR EPD 25 days

- 20040729:	Article 91 (Insubordinate conduct toward a warrant, noncommissioned, petty officer; displayed belligerent attitude toward a Staff Noncommissioned Officer)
	Awarded: FOP RESTR EPD      Suspended:  FOP RESTR EPD

- 20060621:	Article 112a (Wrongful use, possession, etc., of a controlled substance; specifically, wrongful use of a controlled substance (marijuana) as confirmed by urinalysis testing dated 20060411)
	Awarded: FOP RIR RESTR EPD      Suspended:  RESTR FOP

SPCM:  1
- 20060921:	Article 112a (Wrongful use, possession, etc., of a controlled substance - 4 specifications)
	Specification 1 - wrongful use of a controlled substance (marijuana) between on or about 01 April 2006 and 11 April 2006, confirmed by Naval Drug lab urinalysis testing
	Specification 2 - wrongful use of a controlled substance (marijuana) between on or about 05 May 2006 and 15 May 2006, confirmed by Naval Drug lab urinalysis testing
	Specification 3 - wrongful use of a controlled substance (marijuana) between on or about 17 June 2006 and 27 June 2006, confirmed by Naval Drug lab urinalysis testing
	Specification 4 - wrongful use of a controlled substance (marijuana) between on or about 28 June 2006 and 06 July 2006, confirmed by Naval Drug lab urinalysis testing.
	Sentence Adjudged: BCD, RIR E-1, FOP, CONF (120 days: confined 20060802-20060921 (50 days pre-trial confinement))
	Convening Authority Action: The adjudged sentence is approved, and, expect for the Bad Conduct Discharge, will be executed.  Execution of that part of the sentence extending to all confinement in excess of sixty (60) days is suspended for a period of 12 months, unless sooner vacated, in accordance with the pre-trial agreement.  

SCM:  NONE	CC:  NONE

Retention Warning Counseling:  2

- 20031218:	For SNM knowingly and willingly disrespected an NCO by talking back when ordered to do something

- 20040127:	For unauthorized absence from appointed place of duty

Types of Documents Submitted/reviewed

Related to Military Service:
	DD 214:	☒	Service/Medical Record:	☒	Other Records:	☒
					Record of Trial by SPCL CM
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 P1900.16F), 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)(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 503, Equity.

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

Applicant’s Issues

Nondecisional issues: The Applicant seeks an upgrade in the characterization of his service at discharge in order to facilitate disability benefits from the Department of Veterans Affairs (VA) for Post-Traumatic Stress Disorder (PTSD).  

Decisional issues: The Applicant contends his drug use was an attempt to self-medicate in order to address symptoms resulting from undiagnosed PTSD.

Decision

Date:  20120308	  DOCUMENTARY REVIEW	Location: Washington D.C.	Representation: Disabled American Veterans

By a vote of 5-0 the Characterization of service shall remain BAD CONDUCT DISCHARGE.
By a vote of 5-0 the Narrative Reason for discharge shall remain COURT-MARTIAL.

Discussion
The NDRB reviewed the Applicant’s personal statement; the Applicant stated that he was suffering from PTSD related to combat service in Iraq.  As such, in accordance with U.S. Code, Title 10, Section 1553 (d) (1), the board included a member who is a physician, clinical psychologist, or psychiatrist.  Additionally, in accordance with section 1553 (d) (2), the service secretary expedited a final decision and accorded the case sufficient priority to achieve an expedited resolution. 

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 clemency request, relevant and material facts, as stated in a court-martial, are recognized by the NDRB, to be established facts.  As such, 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 identified one decisional issue related to the equity of his discharge action for the NDRB’s consideration.    

The Applicant’s service record indicates he entered military service at age 19 on a 4-year enlistment contract under a General Enlistment Open Contract, ultimately receiving training as an Engineer Equipment Operator with the Marine Corps.  The Applicant’s enlistment record reflects his entry into military service without waiver to enlistment and induction standards; however, he acknowledged his complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs - in writing - on 29 August 2002 - as a function of his enlistment process.  The highest rank achieved by the Applicant during his enlistment tenure was E-3/Lance Corporal.  The Applicant completed two combat deployments to the Al-Anbar Province of Iraq in support of Operation IRAQI FREEDOM (OIF) Aug 2004 to Mar 2005 and Aug 2005 to Feb 2006.  The military service record does not document awarding of a Combat Action Ribbon.

The Applicant’s record of service documents two retention-counseling warnings related to misconduct and three nonjudicial punishments (Jan 2004, Jul 2004, and Jun 2006) for unauthorized absence, disrespect, and illegal drug use.  The Applicant’s service record further documents a punitive trial by Special Court-Martial for violation of Article 112(a) of the UCMJ: Wrongful use, possession, etc of a controlled substance - marijuana, 4 separate specifications.  A qualified legal defense counsel represented the Applicant throughout the trial by Special Court-Martial process.  In accordance with a signed pre-trial agreement, the Applicant requested trial by judge alone and pled guilty to the charges, as specified, in exchange for a sentence limitation regarding confinement (no confinement in excess of 60 days).  Given the facts of the case, the military trial judge awarded the Applicant a Bad Conduct Discharge, ordered the Applicant reduced in rank to pay grade E-1, and to be confined for a period of 120 days.  The Applicant served 50 days of the 60-day sentence before being released from confinement.  The case was submitted for review without any assignment of error to the U.S. Navy-Marine Corps Court of Criminal Appeals; it was reviewed and the findings of the lower court were affirmed on 28 March 2007.  Subsequently, the Navy Marine Corps Appellate Leave Activity ordered the Bad Conduct Discharge executed, and the Applicant was discharged from the Armed Services with a Bad Conduct Discharge on 28 August 2007.

Nondecisional Issue: The Applicant seeks clemency in requesting an upgrade in the characterization of his service at discharge in order to facilitate access to Department of Veterans Affairs (VA) benefits.  There is no requirement, or law, that grants re-characterization solely on the issue of facilitating access to VA benefits.  Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing or facilitating employment opportunities.  Regulations limit the NDRB’s review solely to a determination of the propriety and the equity of a discharge.  In review of punitive discharges, the NDRB is further restricted to awarding clemency based on equity only - propriety is established by the appeal review process in the military courts of appeal.  As such, this issue does not serve to provide a foundation upon which the NDRB can grant relief.  

The Applicant is advised that the VA has announced special access for VA enrollment available to combat veterans discharged under other than dishonorable conditions (i.e., a discharge characterization of Bad Conduct Discharge or better) for PTSD treatment.  Effective Jan. 28, 2008, combat veterans discharged from active duty on or after Jan. 28, 2003, are eligible for combat veteran enhanced eligibility and enrollment placement into Priority Group 6 (unless eligible for higher enrollment Priority Group placement) for 5 years post discharge.  The Applicant, as a combat veteran, is encouraged to contact the U.S. Department of Veterans Affairs (VA) for more information.  Further information is available at the VA’s website: http://www.ptsd.va.gov/public/pages/help-for-veterans-with-ptsd.asp and http://www.va.gov/healthbenefits/vhbh/.  Additionally, support is available by phone at: 1-877-222-VETS (8387).
  
Decisional Issue (Clemency/Equity)  CLEMENCY NOT WARRANTED.  The Applicant contends his drug use was an attempt to self-medicate in order to address symptoms resulting from undiagnosed PTSD and, as such, warrants clemency due to mitigating factors related to his misconduct of record.  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 requested the Applicant’s medical treatment records (both in-service and any post-service VA treatment records); the VA was unable to locate any records other than the complete service record.  Furthermore, upon review, the NDRB did not find any reference to a medical diagnosis, or indications, of PTSD in the Applicant’s service record to support his claim.  The Applicant did not provide any documentary evidence of a medical diagnosis by competent medical authorities to support his claim.  The Applicant contended that he used illegal drugs to treat symptoms of PTSD.  However, when he failed the first of four command urinalysis tests, he chose to continue to wrongfully use a controlled substance, vice seek medical treatment for his symptoms.  Though the Applicant may feel that PTSD was the underlying cause of his misconduct, the record reflects willful misconduct that demonstrated he was unfit for further service.  The Applicant’s continued use of a controlled substance, coupled with his pre-combat deployment misconduct of record (2 NJPs), were conscious decisions to violate the tenants of honorable and faithful service.

The NDRB recognizes that many of our service members are young at the time they enlist for service, however, most manage to serve their enlistments honorably.  While some members may be less mature than others, the NDRB does not view a member’s youth or immaturity to be a mitigating factor or a sufficient reason for misconduct, especially deliberate and repetitive misconduct.  Moreover, despite a servicemember’s prior record of service, certain serious offenses warrant separation from the Naval Service to maintain proper order and discipline.  The pattern of documented illegal drug use and general contempt for good order and discipline, coupled with the pre-combat deployment misconduct, is not minor misconduct and supports the findings of the court-martial in awarding a Bad Conduct Discharge.  The NDRB found that the evidence of record, along with the Applicant’s statement, did not contain sufficient mitigating or extenuating factors to offset the seriousness of the offenses for which the discharge characterization was awarded.  Given the Applicant’s service, coupled with the repetitive and extensive nature of serious misconduct, the NDRB agreed unanimously that the punishment, as awarded, was warranted and was equitable; relief in the form of clemency is not warranted.  Relief denied.  

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service, service record entries, the record of trial by Special Court-Martial, and the discharge process, the NDRB found that clemency was not warranted.  Therefore, the awarded characterization of service shall remain BAD CONDUCT DISCHARGE and the narrative reason for separation shall remain COURT-MARTIAL.  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 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), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 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