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

Docket No. MD12-00346

ex-PFC, USMC

Current Discharge and Applicant’s Request

Application Received:  20111128
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)
	Narrative Reason change to: NONE REQUESTED

Summary of Service

Prior Service:
Inactive:	USMCR (DEP)	20050909 - 20060529  COG	Active:	USMC 20060530 - 20090905 HON

Period of Service Under Review:
Date of Current Enlistment:  20090906	Age at Enlistment:  21
Period of Enlistment:  4 Years  9 Months
Date of Discharge:  20101207	Highest Rank:  CORPORAL
Length of Service:  01  Year(s)  03  Month(s)  07  Day(s)
Education Level:  12	AFQT:  32
MOS:  3531
Proficiency/Conduct Marks (# of occasions):  3.1 (4) / 2.9 (4)	Fitness Reports:  NOT APPLICABLE

Awards and Decorations (per DD 214):	Rifle EX ACM (w/1 bronze service star) SSDR (3) ICM (w/1 bronze service star) GWOTSM NDSM NATO-ISAF Afghanistan LoA CoC

Periods of UA/CONF:  UA 20091207 - 20100413 (127 days)		Pre-Trial CONF 20100907 - NFIR

NJP:  2

- 20100713:	Article 85 (Desertion, 127 days, 20091207-20100413)
	Awarded: RIR (to E-3) FOP RESTR (60 days)   Suspended:  FOP (suspend 6 months)

- 20100813:	Article 82 (Solicitation of another to commit an offense, 20100611)
	Article 92 (Failure to obey order or regulation, wrongful possession of marijuana, 20100729)
	Article 109 (Destruction of military property, a paver, estimated damages $1000, 20100611)  
	Article 112a (Wrongful use of a controlled substance, marijuana, 20100729)
	Article 121 (Larceny, stole a radiator from Cape Fear Paving Company, 20100611)  
	Awarded: RIR (to E-2) FOP RESTR EPD   Suspended:  NONE

SCM:  NONE		SPCM:  NONE	CC:  NONE

Retention Warning Counseling:  3

- 20100610:	For misconduct, specifically, it was brought to command attention by the Housing Referral Office that you were causing a domestic disturbance as well as destroying personal property in an apartment that you were renting in Jacksonville, NC.  This type of behavior is unsat and will not be tolerated by the Housing Manager or the Marine Corps.  You are starting to develop a pattern of misconduct and your actions are not in keeping with the standards of conduct expected of a Marine.

- 20100714:	For lack of judgment, discipline, and responsibility.  On 20100713 you received Regimental level NJP for being in violation of Article 85 and were reduced to LCPL.  Knowing and understanding this violation of the UCMJ, this type of behavior is unacceptable and will not be tolerated. 

- 20100817:	For lack of judgment, discipline, and responsibility.  On 20100813 you received Regimental level NJP for being in violation of Articles 82, 92, 109, 112a, and 121 of the UCMJ and were reduced to the rank of Private First Class.  Knowing and understanding these violations of the UCMJ, this type of behavior is unacceptable and will not be tolerated.  You have already developed a pattern of misconduct and are currently being processed for administrative separation for misconduct for previous infractions.

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.	Applicant seeks a discharge upgrade to obtain VA benefits.
2.	Applicant contends his discharge was inequitable based on his honorable service in Iraq, Afghanistan, and the Western Pacific.
3.	Applicant contends Post-Traumatic Stress Disorder (PTSD) mitigates the misconduct for which he was separated.

Decision

Date:  20120308	DOCUMENTARY REVIEW	Location: Washington D.C.	 Representation: NONE

By a vote of 5-0 the Characterization shall change to GENERAL (UNDER HONORABLE CONDITIONS).
By a vote of 5-0 the Narrative Reason shall remain IN LIEU OF TRIAL BY COURT MARTIAL.

Discussion

As a result of the Applicant’s diagnosis of PTSD, 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 governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  The Applicant identified two decisional issues for the Board’s consideration.  The Board completed a thorough review of the circumstances that led to his discharge and the discharge process to ensure his discharge met the pertinent standards of equity and propriety.  The Applicant’s record of service included three 6105 counseling retention warnings and two nonjudicial punishments (NJPs) for violations of the Uniform Code of Military Justice (UCMJ): Article 82 (Solicitation, of a Marine to commit an offense, 11 Jun 2010), Article 85 (Desertion, 7 Dec 2009-13 Apr 2010, terminated by his surrender), Article 92 (Failure to obey an order or regulation, wrongful possession of marijuana, 29 Jul 2010), Article 109 (Destruction of military property, a paver, estimated damages $1000, 11 Jun 2010), Article 112a (Wrongful use, possession, etc of a controlled substance, marijuana, 29 Jul 2010), and Article 121 (Larceny, stole a radiator from Cape Fear Paving company, 11 Jun 2010).  There was no evidence of trial by courts-martial.  The Applicant did not have a pre-service drug waiver for illegal drug use prior to entering the Marine Corps, however, he did acknowledge his complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 7 Sep 2005.  On 27 Sep 2010, the Applicant was charged with violation of UCMJ Article 112a (Wrongful use of marijuana on or about/between 3-13 Aug 2010).  The Article 112a charge was referred for trial by Special Court-Martial on 29 Sep 2010.  The Applicant, after consultation with qualified counsel, submitted a request for separation in lieu of trial by court-martial (SILT) to the convening authority.  On 17 Nov 10, the Separation Authority approved the Applicant’s SILT request and directed that he be separated from the Marine Corps with an Under Other Than Honorable Conditions discharge.  The Applicant was discharged on 7 Dec 2010 as directed.

Issue 1: (Nondecisional) The Applicant seeks a discharge upgrade to obtain VA 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.

Issue 2:  (Decisional) (Equity)  RELIEF NOT WARRANTED.  The Applicant contends his discharge was inequitable based on his honorable service in Iraq, Afghanistan, and the Western Pacific.  Despite a service member’s prior record of service, certain serious offenses warrant separation in order to maintain good order and discipline; violations of UCMJ Article 85 (Desertion), 92 (Failure to obey an order or regulation), 112a (Wrongful use, possession, etc of a controlled substance), and 121 (Larceny) meet this standard.  The Board reviews the propriety and equity of each Applicant’s discharge individually.  Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval Service.  In September 2010, the Applicant’s command referred him to trial by Special Court-Martial due to his recent illegal use of 

marijuana (during August 2010) and a history of misconduct that resulted in two NJPs and three 6105 retention counseling warnings.  The Applicant, after consult with qualified counsel, submitted a request to his commanding officer for administrative separation in lieu of trial by court-martial.  In the request, the Applicant, in exchange for pleading guilty to the offense(s) in which he was charged, offered to accept administrative separation with the least favorable characterization of service Under Other Than Honorable Conditions, thereby avoiding a possible conviction and punitive discharge (Bad Conduct Discharge) via Special Court-Martial.  The command accepted the Applicant’s request, and he was subsequently administratively separated on 7 Dec 2010 with an Under Other Than Honorable Conditions discharge.  The NDRB reviewed the Applicant’s entire record of service.  The evidence of record does not demonstrate the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  Further, the Applicant specifically requested and was granted an administrative separation from the Marine Corps in lieu of trial by court-martial.  After considering all the available evidence, the Board determined the Applicant’s issue was without merit and did not provide a basis for which relief could be granted.  Relief denied.

Issue 3:  (Decisional) (Equity)  RELIEF WARRANTED.  The Applicant contends PTSD mitigates the misconduct for which he was separated.  Although the Applicant’s complete medical record was not available for review, a 29 Jun 2010 medical record entry form (Naval Hospital Camp Lejeune, NC Mental Health Clinic) indicates the Applicant had been previously diagnosed with: Adjustment Disorder with mixed emotional features; Opioid Dependence; PTSD; Adjustment Disorder; Anti-social Personality Disorder; Unspecified psychoactive substance abuse dependence using a combination of drugs; ADHD (combined type); and Depression.  The Applicant’s service records also reveal that the Applicant had a proficiency (Pro) and Conduct (Con) mark average of 4.2/4.2 during his first enlistment.  His first set of Pro/Con marks after his Sep 2009 reenlistment in Afghanistan and his subsequent Oct 2009 return from deployment were 4.5/4.5.  Within two months of his return from deployment, the Applicant commenced a nine-month period of repeated misconduct that included UA/Desertion, Domestic disturbance, Solicitation of another to commit an offense, Possession and use of marijuana, Destruction of military property, Larceny, and a subsequent use of marijuana.  After a thorough review of the records, and the facts and circumstances unique to this case to include supporting documentation submitted on behalf of the Applicant and the Applicant’s significant exposure to IEDs on a daily basis as a vehicle driver, the NDRB discerned that although the Applicant’s discharge was proper, an inequity exists with the characterization of the Applicant’s service given upon his discharge.  Accordingly, the NDRB found that the Applicant’s characterization of service shall change to General (Under Honorable Conditions).  Relief warranted.

The U.S. Department of Veterans Affairs (VA) has announced special access to combat veterans discharged under other than dishonorable conditions.  The VA determines the eligibility for enrollment independent of the Applicant’s characterization of service as determined by the Navy.  Effective 28 January 2008, combat veterans discharged from active duty on or after 28 January 2003 are eligible for combat-veteran enhanced eligibility and enrollment placement into Priority Group 6 (unless eligible for higher enrollment Priority Group placement) for five years after discharge.  The Applicant, as a combat veteran, is encouraged to contact the VA for more information at http://www4.va.gov/healtheligibility/Library/pubs/CombatVet/CombatVet.pdf or 1-877-222-VETS (8387).

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service, service record entries and the separation in lieu of trial discharge process, the Board found the discharge was proper but not equitable at the time of his discharge.  Therefore, the awarded characterization of service shall change to GENERAL (UNDER HONORABLE CONDITIONS) and the narrative reason for separation shall remain IN LIEU OF TRIAL BY 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 for additional information.

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