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

Docket No. MD12-00458

ex-LCpl, USMC

Current Discharge and Applicant’s Request

Application Received:  20111227
Characterization of Service Received: (per DD 214) UNDER OTHER THAN HONORABLE CONDITIONS
Narrative Reason for Discharge: (per DD 214) MISCONDUCT
Authority for Discharge: (per DD 214) MARCORSEPMAN 6210.6 [COMMISSION OF A SERIOUS OFFENSE]

Applicant’s Request:	Characterization change to: HONORABLE
	Narrative Reason change to: NONE REQUESTED

Summary of Service
Prior Service:
Inactive:	USMCR (DEP)	20030624 - 20040613  COG	Active:	USMC  20040614 - 20070927 HON

Period of Service Under Review:
Date of Current Enlistment:  20070928	Age at Enlistment:  21
Period of Enlistment:  4 Years  10 Months
Date of Discharge:  20110317	Highest Rank:  SERGEANT
Length of Service:  03  Year(s)  05  Month(s)  17  Day(s)
Education Level:  12	AFQT:  32
MOS:  0311/0916
Fitness Reports:  AVAILABLE

Awards and Decorations (per DD 214):	Rifle EX (3) Pistol SS NMCAM (w/Combat “V”) CAR GCM ICM (w/2 bronze service stars) SSDR (3) HSM GWOTEM GWOTSM NDSM AFMUA MM (2)

Periods of UA/CONF:  20090804 - 20090806 (3 days)

NJP:  NONE	SPCM:  NONE		CC:  NONE		Retention Warning Counseling:  NONE

SCM:  1
- 20100302:	Article 128 (Assault, 20090727)
	Sentence: RIR (to E-4) FOP RESTR	CA: Sentence approved and will be executed. 

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.  The Marine Corps Separation and Retirement Manual, (MCO P1900.16F, effective 1 September 2001 until Present, Paragraph 6210, MISCONDUCT.

B.  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.

C.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 128.

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

Applicant’s Issues

1.	Applicant contends his discharge was inequitable. 
2.	Applicant contends his anxiety problems, a result of PTSD, mitigate the misconduct for which he was separated. 

Decision

Date:  20120510	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 MISCONDUCT.

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 Applicant’s service records indicate he served in support of Operation Enduring Freedom from March 2005 - September 2005 (26 MEU) and Operation Iraqi Freedom from July 2007 - January 2008 (Kuwait) and August 2008 - February 2009 (Kuwait and Iraq).

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 did not include any 6105 counseling retention warnings or commanding officer nonjudicial punishment (NJP).  The record did reflect one summary court-martial for violation of the Uniform Code of Military Justice (UCMJ): Article 128 (Assault, unlawfully touch a PFC on the body with his hand, o/o 27 July 2009).  Based on the offense committed by the Applicant, his command referred him for trial by Special Court-Martial.  On 21 January 2010, the Applicant, after consult with qualified counsel, submitted a request to his commanding officer for administrative separation in lieu of trial by court-martial (SILT).  In the request, the Applicant, in exchange for pleading guilty to the Article 128 offense in which he was charged, offered to waive his right to an administrative separation board (Admin Board), accept punishment at Battalion Commander’s NJP or a Summary Court-Martial, and then accept administrative separation with the least favorable characterization of service Under Other Than Honorable Conditions, although he requested General (Under Honorable Conditions), thereby avoiding a possible conviction and punitive discharge via Special Court-Martial.

On 2 Mar 2010, the Applicant was notified of administrative separation processing using the administrative board procedure.  Upon notification, he elected to exercise his rights to consult with a qualified counsel, submit a written statement, and request an administrative board.  On 19 Apr 2010, the Regiment Medical Officer submitted a memorandum to the Applicant’s command stating that the Applicant had been appropriately screened and evaluated for PTSD, but had not received a PTSD diagnosis to date although he was exhibiting signs and being evaluated for PTSD.  On 10 May 2010, the Applicant’s Regimental Commander recommended approval of the Applicant’s SILT request and recommended a General (Under Honorable Conditions) characterization of service.  On 15 September 2010, the Commander, Second Marine Division disapproved the Applicant’s SILT request and directed that he appear before an administrative separation board.  The Admin Board proceedings were conducted on 3 Nov 2010 and resulted in the following: That a preponderance of the evidence supported all allegations for which the board process was conducted; the Applicant should be separated from the Marine Corps (without suspension); and the Applicant should be awarded an Under Other Than Honorable Conditions discharge.  The Applicant’s Defense Counsel submitted a Letter of Deficiency (5 Nov 2010) to the chain of command alleging that the Applicant was not allowed the ability to present matters on his behalf and that the Admin Board Senior Member’s conduct during the proceeding was indicative of a member who would not provide fair and impartial membership.  On 2 Mar 2011, the Separation Authority endorsed the Applicant’s administrative separation, stating “…The Medical Officer’s letter has been considered prior to making my decision.  Enclosures 3-5 (Letter of Deficiency, Recorder’s response to the Letter of Deficiency, 

and the Division Psychiatrist’s 8 Feb 2011 letter) were considered prior to making my decision.  I have carefully reviewed the administrative separation board proceedings to include all the enclosures.  I concur with the board’s findings and recommendations.  The Respondent shall be separated by reason of misconduct due to commission of a serious offense pursuant to paragraph 6210.6 of the reference.  The characterization of service shall be under other than honorable conditions.”  The Applicant was separated from the Marine Corps on 17 Mar 2011 with an Under Other Than Honorable Conditions discharge.

Issue 1:  (Decisional) (Equity)  PARTIAL RELIEF WARRANTED.  The Applicant contends his discharge was inequitable.  In his letter to the NDRB, the Applicant infers that his discharge was too harsh when the specifics of his misconduct are considered along with his more than six years of in-service performance, which included a Navy Marine Corps Achievement Medal (with Combat V device).  After a careful review of the Applicant's service records, numerous in-service character letters, and the facts and circumstances unique to this case, the NDRB determined partial relief was warranted based on equitable grounds.  The Board voted unanimously to upgrade the discharge characterization to General (Under Honorable Conditions), but not change the narrative reason for separation.  Partial relief warranted.  Full relief to Honorable was not granted due to the serious nature of the misconduct.

Issue 2:  (Decisional) (Equity)  RELIEF NOT WARRANTED.  The Applicant contends his anxiety problems, a result of PTSD, mitigate the misconduct for which he was separated.  The Applicant’s medical record indicates he received a mental health evaluation on 24 May 2010 from a Staff Psychologist at Camp Lejeune Naval Hospital.  The evaluation report indicated the Applicant was experiencing an increased amount of irritability and anger outbursts following his last deployment (July 2008-February 2009).  The physician noted, “His anxiety symptoms, particularly those of hypervigilance, the tendency to isolate, and the diminished interest in activities, as well as some of the symptoms of PTSD, are severe enough to warrant a diagnosis of Anxiety Disorder NOS…. (the Applicant) has been diagnosed with Anxiety Disorder NOS, with a rule-out for PTSD.  He reported some symptoms of PTSD but not sufficient for that diagnosis.”  The government enjoys a presumption of regularity in the conduct of its affairs.  While he may feel that his anxiety (a result of PTSD) was the underlying cause of his misconduct, the record demonstrates his misconduct was willful and 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.  After careful analysis of and deliberation on the Applicant’s case, the NDRB determined that PTSD was not a mitigating factor in the Applicant’s misconduct.  Accordingly, the Board found this issue did not provide a basis for which relief could be granted.  Relief denied.  

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 or 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).

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service, service record entries and the administrative separation process, the Board found the discharge was proper but not equitable.  Therefore, the awarded characterization of service shall change to GENERAL (UNDER HONORABLE CONDITIONS) and the narrative reason for separation shall remain MISCONDUCT.  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), 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