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

Docket No. MD11-01741

ex-Pvt, USMC

Current Discharge and Applicant’s Request

Application Received:  20110706
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: HONORABLE OR GENERAL (UNDER HONORABLE CONDITIONS)
	Narrative Reason change to: NONE REQUESTED

Summary of Service

Prior Service:
Inactive:	USMCR (DEP)	20000426 - 20000625  COG	Active:	USN	20000626 - 20031001  HON

Period of Service Under Review:
Date of Current Enlistment:  20031002	Age at Enlistment:  22
Period of Enlistment:  4 Years  2 Months
Date of Discharge:  20080722	Highest Rank:  SERGEANT
Length of Service:  04  Year(s)  09  Month(s)  21  Day(s)
Education Level:  12	AFQT:  48
MOS:  3531
Fitness Reports:  AVAILABLE

Awards and Decorations (per DD 214):	Rifle SS Pistol EX GCM (2) NMCAM (2) CAR ICM SSDR (2) ACM GWOTSM NATO KCM AFEM NDSM MUC (3) NUC CoC PUC

Periods of UA:  NONE

NJP:  NONE	SCM:  NONE		CC:  NONE	Retention Warning Counseling:  NONE

SPCM:  1
- 20071003:	Article 112a (Drugs - cocaine)
	Sentence: FOP CONF FOR 90 DAYS (20070404-20070426, 23 days, and 20070629-20070827, 60 days) BCD
	CA Action 20071114: Sentence is approved and, except for the BCD, will be executed.  However, the execution of the part of the sentence extending to confinement in excess of 75 days will be suspended for 24 months.

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 P1900.16F), 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 502, Propriety and Para 503, Equity.

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

Applicant’s Issues

1.	The Applicant contends Post-Traumatic Stress Disorder (PTSD) mitigates his misconduct.  
2.	The Applicant contends a special court-martial was too harsh for his misconduct, and he had been a stellar Marine until after his third combat deployment.

Decision

Date:  20111116	DOCUMENTARY REVIEW	Location:  Washington D.C.	Representation:  NONE

By a vote of 5-0 the Characterization shall change to UNDER OTHER THAN HONORABLE CONDITIONS.
By a vote of 5-0 the Narrative Reason shall remain COURT-MARTIAL.

Discussion

In accordance with U.S. Code, Title X, Section 1553 (d)(1), the Naval Discharge Review Board included a member who is a physician, clinical psychologist, or psychiatrist.  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.

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 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 case, 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 stated in a court-martial specification 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’s record of service included one special court-martial for violation of the UCMJ: Article 112a (Wrongful use, possesion of a controlled substance, 1 specification: cocaine).  The Applicant also had a pre-service drug waiver for using marijuana two times prior to entering the Marine Corps, and acknowledged his complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 25 April 2000.  Based on the Applicant’s conviction at special court-martial, and following confinement and appellant review, he was separated with a Bad Conduct Discharge.

Issues 1-2:  (Decisional) (Clemency)  PARTIAL RELIEF WARRANTED.  The Applicant contends PTSD mitigates his misconduct.  The Applicant further contends a special court-martial and subsequent Bad Conduct Discharge were too harsh for his misconduct.  He also states that he was a stellar Marine until after his third combat deployment.  The Applicant submitted documentation from the VA showing he has been diagnosed with PTSD and has been receiving treatment since September 2009.  The NDRB carefully considered the Applicant’s multiple combat tours, strong previous service record, and PTSD diagnosis.  The NDRB determined the Applicant was likely suffering from PTSD while in service and made an unfortunate choice to use illegal drugs.  The NDRB agreed with the Applicant that his discharge was inequitable considering the nature of his misconduct, his PTSD diagnosis, and combat record.  While some mitigation is in order, the Applicant must be held accountable for his actions.  Therefore, the Applicant’s characterization of service will change to Under Other Than Honorable Conditions with no change to the narrative reason for separation.  Partial relief warranted.  Full relief to Honorable or General (Under Honorable Conditions) was not granted due to the seriousness of the misconduct and the rank of the Applicant. 

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 but not equitable.  Therefore, the awarded characterization of service shall change to UNDER OTHER THAN HONORABLE CONDITIONS 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, 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