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

Docket No. MD12-01140

ex-LCpl, USMC

Current Discharge and Applicant’s Request

Application Received:  20120424
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)	19930630 - 19940620  COG	Active:	USMC 19940621 - 19980620 HON
	USMCR (IRR)	19980621 - 20010629  HON		USMC 20010807 - 20041114 HON
                USMCR (DEP)  20010802 - 20010806  COG

Period of Service Under Review:
Date of Current Enlistment:  20041115	Age at Enlistment:  28
Period of Enlistment:  4 Years  3 Months
Date of Discharge:  20090212	Highest Rank:  STAFF SERGEANT
Length of Service:  04  Year(s)  02  Month(s)  28  Day(s)
Education Level:  12	AFQT:  40
MOS:  0369
Fitness Reports:  AVAILABLE

Awards and Decorations (per DD 214):	GCM (2) NMCAM (2) CAR (Iraq) SSDR (8) KDSM GWOTSM GWOTEM NDSM (2) HSM NUC MUC CoC (Individual Award) (5) CoA (5) LoA (2)

Periods of UA/CONF:  NONE

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

CIVIL ARREST:  1
- NFIR:	Charges:  Rape Second Degree, Fourth Degree Sex Offense, Second Degree Assault

Administrative Corrections to the Applicant’s DD 214

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

	Block 18, Remarks, should contain the statement: “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 010807 UNTIL 041114”
	
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:	☐

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

Applicant’s Issues

1.	The Applicant contends he and his family continue to suffer the adverse effects of the discharge.
2.	The Applicant contends there was a lack of due process, his charges were reduced to misdemeanors, and he was summarily discharged before a final determination of charges was concluded by the civilian prosecutor.
3.	The Applicant contends his previous Honorable enlistment, record of service, numerous medals and awards, and combat service in Afghanistan outweigh his misconduct.
4.	The Applicant contends his post-service conduct is worthy of consideration.
5.	The Applicant contends other Marines convicted of felonies were allowed to remain in the service or received Honorable discharges.

Decision

Date:  20121212	DOCUMENTARY REVIEW	Location: Washington D.C.	 Representation: NONE

By a vote of 5-0 the Characterization shall remain UNDER OTHER THAN HONORABLE CONDITIONS.
By a vote of 5-0 the Narrative Reason shall remain MISCONDUCT.

Discussion

As a result of the Applicant’s claim of Post-Traumatic Stress Disorder (PTSD) and Traumatic Brain Injury (TBI), 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 reviewed the Applicant’s personal statement; the Applicant reported to the VA in May 2010 that he suffered from PTSD and TBI symptoms.  The Applicant stated he served in combat in Afghanistan, and his record of service reveals that he received a Combat Action Ribbon for service in 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 Board did complete 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.  In his current enlistment, the Applicant’s record of service did not include any 6105 counseling warnings, nonjudicial punishments (NJPs), or trials by court-martial for violations of the Uniform Code of Military Justice (UCMJ).  However, documentation found in his service record indicated he was arrested by civilian authorities and charged with second degree rape, fourth degree sex offense, and second degree assault.  Based on the preponderance of the evidence that he committed the offenses as demonstrated by his arrest, his command administratively processed him for separation.  When notified of administrative separation processing using the administrative board procedure, the Applicant exercised his right to request an administrative board, but it was unclear as to whether he exercised or waived his rights to consult with a qualified counsel and submit a written statement.  The administrative separation board voted 3 to 0 that the preponderance of the evidence proved all acts or omissions alleged in the notification and recommended that the Applicant be separated from the Marine Corps, that the characterization of service should be Under Other Than Honorable Conditions, that separation should not be suspended, and that he should not be retained in the Individual Ready Reserve.  The Separation Authority concurred with the recommendations and ordered the Applicant to be discharged Under Other Than Honorable Conditions for Misconduct (Serious Offense).

Issue 1:  (Nondecisional)  The Applicant contends he and his family continue to suffer the adverse effects of the discharge.  The NDRB acknowledges the Applicant’s desire to provide a better life for himself and his family, however, this issue does not serve to provide a foundation upon which the Board can grant relief.  The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing a former servicemember’s ability to provide a better life for himself or his family.  Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.

Issue 2:  (Decisional) (Propriety/Equity)  RELIEF NOT WARRANTED.  The Applicant contends there was a lack of due process, his charges were reduced to misdemeanors, and he was summarily discharged before a final determination of charges was concluded by the civilian prosecutor.  In reviewing cases, the NDRB is not bound by decisions of the civilian courts to reduce or dismiss charges subsequent to the Applicant’s discharge.  However, such information can be and was considered by the NDRB in making a determination as to the equity of the characterization of service.  The commission of a serious offense does not require adjudication by nonjudicial, judicial proceedings, or civilian conviction, however, the offense must be substantiated by a preponderance of evidence.  The Applicant was notified of separation due to commission of a serious offense as evidenced by the civilian charges of second degree rape, fourth degree sex offense, and second degree assault.  The Applicant was provided the opportunity to present his case before an administrative board, and he exercised this right.  The administrative separation board voted 3 to 0 that the preponderance of the evidence proved all acts or omissions alleged in the notification and recommended that the Applicant be separated from the Marine Corps Under Other Than Honorable Conditions.  The Applicant was not discharged for Misconduct (Civilian Conviction) and so a conviction was not needed to initiate separation processing for Misconduct (Serious Offense).  Per the Marine Corps Separation and Retirement Manual, the offense must be substantiated by a preponderance of the evidence, which was met with the civilian charges against the Applicant.  Even with the reduced charges, the NDRB determined the discharge was proper and equitable.  Relief denied.

Issue 3:  (Decisional) (Propriety/Equity)  RELIEF NOT WARRANTED.  The Applicant contends his previous Honorable enlistment, record of service, numerous medals and awards, and combat service in Afghanistan outweigh his misconduct.  The Applicant received Honorable discharges for enlistments from June 1994 to June 1998 and from August 2001 to November 2004.  Each period of enlistment is an independent obligation and characterization is determined for that specific period of time.  In his current enlistment, the Applicant was arrested by civil authorities and charged with several offenses, which were subsequently reduced to misdemeanors.  Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the Marine Corps to maintain proper order and discipline.  Violation of Articles 120 (Sexual Assault) and 128 (Assault) are two offenses that warrant processing for administrative separation regardless of grade, performance, or time in service.  The Applicant was administratively separated and not separated upon expiration of enlistment or fulfillment of service obligation.  The characterization of service is determined by the quality of the member’s total performance of duty and conduct during the current enlistment, including the reason for separation.  Other considerations shall be given to the member’s length of service, grade, aptitude, and physical and mental condition.  The NDRB also considered possible mitigation of the offense after noting that the Applicant claimed he was suffering from the effects of PTSD and TBI at a post-service VA exam in May 2010.  After a thorough review of the records and based on the Applicant’s record of service, the NDRB determined that PTSD and TBI did not mitigate the seriousness of the offense and further determined the Applicant engaged in conduct involving one or more acts or omissions that constituted a significant departure from the conduct expected of members of the Naval Service.  Therefore, the awarded characterization of service will remain unchanged.  Relief denied.

Issue 4:  (Decisional) (Equity)  RELIEF NOT WARRANTED.  The Applicant contends his post-service behavior has been exemplary as a citizen, taxpayer, and family man.  The NDRB is authorized to consider post-service factors in the re-characterization of a discharge.  However, there is no law, or regulation, that provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service.  Normally, to permit relief, a procedural impropriety or inequity must have been found to exist during the period of enlistment in question.  Besides the Applicant’s statement on the DD Form 293, he provided VA service-connected compensation documentation, proof of VA health exams, his plea agreement with a civilian court, a VA rehabilitation plan, an employer character reference letter, a criminal background check, and in-service letters of appreciation for volunteer activities.  The Applicant could have provided documentation as detailed in the Post-Service Conduct paragraph in the Addendum with the recognition that completion of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case by case basis to determine if post-service conduct establishes that the in-service misconduct was an aberration.  The Board determined the awarded characterization of service shall remain Under Other Than Honorable Conditions.  Relief denied.

Issue 5:  (Decisional) (Propriety/Equity)  RELIEF NOT WARRANTED.  The Applicant contends other Marines convicted of felonies were allowed to remain in the service or received Honorable discharges, and his discharge was too severe for the offense.  The NDRB reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis.  If such a review reveals an impropriety or inequity, relief is in order.  Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval Service.  Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Marine Corps.  A preponderance of the evidence reviewed supports the conclusion that the Applicant committed a serious offense, that separation from the Naval Service was appropriate, and that an Under Other Than Honorable Conditions discharge was warranted.  The NDRB found the characterization of the Applicant’s discharge was equitable and consistent with the characterization of discharge given others in similar circumstances.  Relief denied.

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 and equitable.  Therefore, the awarded characterization of service shall remain UNDER OTHER THAN 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.

Pertinent Regulation/Law

A.  Paragraph 6210, MISCONDUCT of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), 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 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, Articles 120 and 128.

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