ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20120815
Characterization of Service Received:   
Narrative Reason for Discharge:   
Authority for Discharge:   MARCORSEPMAN 

Applicant’s Request:	Characterization change to: 
	Narrative Reason change to: 

Summary of Service
Prior Service:
Inactive:	USMCR (DEP)	20041129 - 20050626  	Active:		20050627 - 20080804  

Period of Service Under Review:
Date of Current Enlistment:  20080805	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20110218	Highest Rank:  
Length of Service:    Year(s)    Month(s)  14  Day(s)
Education Level:  	AFQT:  41
MOS:  0621 / 0916
Fitness Reports:  

Awards and Decorations (per DD 214):	Rifle  AAM   (2)   (2)     CoC

Periods of UA/CONF:  20100811 - 20100822, 12 days (In Hands of Civil Authorities) / CONF:  

NJP:  	SCM:  		SPCM:  	CC:  	Retention Warning Counseling:  

CIVIL ARREST:  
- 20100810:	Charges:  One count of abduction and kidnapping and one count of assault and battery on a family member.  Prosecution deferred to 20121019 with the charges to be dismissed upon completion in conjunction with monitoring compliance with the local community based probation agency.  [Extracted from Commanding Officer’s letter dated 20101115.]

Administrative Corrections to the Applicant’s DD 214

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

	  “MISCONDUCT”

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 his misconduct was an isolated incident in an otherwise honorable period of service.
2.	The Applicant contends his misconduct was mitigated by personal problems. 
3.	The Applicant contends his misconduct was mitigated by combat-related Post-Traumatic Stress Disorder (PTSD) and Bipolar Disorder.
4.	The Applicant contends his post-service accomplishments are worthy of consideration for an upgrade.

Decision

Date:  20130529		Location: Washington D.C.	 Representation: 

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  MISCONDUCT.

Discussion

As a result of the Applicant’s claim 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 Applicant’s service record documents completion of a deployment in the Al-Anbar Province of Iraq from September 2006 to April 2007 conducting combat support operations in support of Operation IRAQI FREEDOM.  He completed a second overseas deployment with the 15th Marine Expeditionary Unit from May 2008 to November 2008.

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  discharge and the discharge process to ensure  discharge met the pertinent standards of equity and propriety.  The Applicant’s record of service included one civilian arrest for one count of abduction and kidnapping and one count of assault and battery on a family member.  Based on the offenses committed by the Applicant,  command administratively processed  for separation.  When notified of administrative separation processing using the  procedure, the Applicant waived  right to request an administrative board, but exercised his rights to consult with a qualified counsel and submit a written statement.

Although the NDRB cannot grant a change based solely on an upgrade to access mental health care treatment through the Department of Veterans Affairs (VA) due to PTSD, the Applicant should be aware that the VA has announced special VA enrollment access for PTSD and mental health treatment to combat veterans discharged under other than dishonorable conditions.  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.  Additionally, the VA determines the eligibility for enrollment in its programs - independent of the Applicant’s characterization of service as determined by the Marine Corps.  The Applicant, as a combat veteran, is encouraged to contact his local VA affairs representative for more information and may request a review of service and determination of benefits from the VA.  Alternately, he may call 1-877-222-8387 or visit the following website for more information: http://www4.va.gov/healtheligibility/Library/pubs/CombatVet/CombatVet.pdf.

:  (Decisional) ()  .  The Applicant contends his misconduct was an isolated incident in an otherwise honorable period of service.  The Applicant received an Honorable discharge for his first enlistment from June 2005 to August 2008.  Each period of enlistment is an independent obligation and characterization is determined for that specific period of time.  During the Applicant’s second enlistment, civil authorities arrested him and charged him with one count of abduction and kidnapping and one count of assault and battery on a family member.  Subsequently, the Applicant pleaded nolo contendre to assault and battery on a family member.  Despite a service member’s prior record of service, certain serious offenses, even though isolated, may warrant separation from the  to maintain proper order 

and discipline.  A civilian arrest for assault, battery, abduction, and kidnapping are not in congruence with the policies and values of the Marine Corps and warrant processing for administrative separation regardless of grade, performance, deployments, awards, or time in service.  This usually results in an unfavorable characterization of discharge or, at a maximum, a punitive discharge and possible confinement if adjudicated and awarded as part of a sentence by a special or general court-martial.  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.

:  (Decisional) ()  .  The Applicant contends his misconduct was mitigated by personal problems, specifically, stress caused by his wife who was bipolar and a drug addict.  The Applicant’s DD Form 293 and supporting documentation paint a picture of a challenging relationship exacerbated by drug and alcohol dependency, mental illness, and combat-related PTSD.  The NDRB recognizes that serving in the military is challenging.  Most service members, however, serve honorably and therefore earn their Honorable or General discharges.  In fairness to those service members, commanders and separation authorities are tasked to ensure that undeserving Marines receive no higher characterization than is due.  The Applicant was receiving treatment for his PTSD at the time of the incident.  While the Applicant contends his bipolar diagnosis occurred right before the incident, there is no indication that he was not responsible for his behavior or should not be held accountable for his actions.  After a complete review of the records and documentation submitted by the Applicant, the NDRB determined the Applicant’s personal problems were not mitigating factors in his misconduct.  Relief denied.
 
Issue 3:  (Decisional) ()  .  The Applicant contends his misconduct was mitigated by combat-related PTSD and Bipolar Disorder.  The NDRB did find reference to a medical diagnosis of PTSD in the Applicant’s service record, which his chain of command took into account when recommending and determining his discharge characterization of Under Other Than Honorable Conditions.  In his recommendation to the Separation Authority, the Applicant’s commanding officer stated, “Sgt C_ has been diagnosed with PTSD and Type II Bipolar Disorder.  Further, he suffers from alcohol dependence and depression.  There is no documented history or clinical reason to suspect Traumatic Brain Injury.  Sgt C_’s clinical psychologist has stated that his conditions significantly contribute to his periods of intense anger and impulsiveness to the point that he has difficulty monitoring his actions.  However, the psychologist’s professional determination is that Sgt C_ is responsible for those actions….  After evaluating Sgt C_’s conduct and his personal situation, I believe it is in the best interest of the Marine Corps to administratively separate him with an other than honorable characterization of service.”  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 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.  The NDRB determined his PTSD and Bipolar Disorder did not mitigate or excuse his misconduct.  Relief denied.

Issue 4:  (Decisional) ()  .  The Applicant contends his post-service accomplishments are worthy of consideration for an upgrade to General (Under Honorable Conditions).  The NDRB considers 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.  The Applicant provided a personal statement, college transcript, evidence of current employment, multiple character references, and a letter of recommendation from his Congressman.  The Applicant could have provided documentation as detailed in the Post-Service Conduct paragraph in the Addendum, however, 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 characterization of service received was appropriate considering the length of service and UCMJ violations.  Relief denied.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service,  record entries, and discharge process, the Board found   Therefore, the awarded characterization of service shall   and the narrative reason for separation shall remain .  The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of  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 P1900.16F), 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 II, Para 211, Regularity of Government Affairs, Part V, Para 502, Propriety and Para 503, Equity.

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