Title: DEPARTMENT OF THE NAVY
Author: CAP
Last saved by: nuchy.garcia-anglin
Company: NCPB

Docket No. MD12-01767

ex-Pvt, USMC

Current Discharge and Applicant’s Request

Application Received:  20120814
Characterization of Service Received:  (corrected) UNDER OTHER THAN HONORABLE CONDITIONS
Narrative Reason for Discharge:  (per DD 214) MISCONDUCT
Authority for Discharge:  (per DD 214) MARCORSEPMAN 6210.3 [PATTERN OF MISCONDUCT]

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)	20070126 - 20070312  COG	Active:	NONE

Period of Service Under Review:
Date of Current Enlistment:  20070313	Age at Enlistment:  20
Period of Enlistment:  4 Years  0 Months
Date of Discharge:  20091027	Highest Rank:  PRIVATE FIRST CLASS
Length of Service:  02  Year(s)  07  Month(s)  15  Day(s)
Education Level:  13	AFQT:  96
MOS:  0311
Proficiency/Conduct Marks (# of occasions):  3.9 (6) / 3.8 (6)	Fitness Reports:  NOT APPLICABLE

Awards and Decorations (per DD 214):	Rifle MM SSDR ICM (2) GWOTSM NDSM

NJP:  3

- 20071114:	Article 92 (Failure to obey order or regulation)
	Article 109 (Property other than military property of the U.S - loss, damage, destruction, waste, spoilage, or destruction by willfully and wrongfully destroying a windshield)
	Article 121 (Larceny or wrongful appropriation by stealing a case of Rockstar drinks)
	Article 134 (General Article - drunk and disorderly)
	Awarded: RIR FOP RESTR EPD  Suspended:  NONE

- 20080321:	Article 134 (General Article - carrying a M249 SAW in an improper manner by having his finger on the trigger causing the weapon to negligently discharge a blank round, 2 specifications)
	Awarded: FOP RESTR EPD  Suspended:  RESTR EPD

- 20090107:	Article 92 (Failure to obey order or regulation)
	Article 95 (Resisting apprehension, flight, breach of arrest, and escape - damaged property owned by Sunset Inn and then fled the scene of the accident)
	Article 109 (Property other than military property of the United States - waste, spoilage, or destruction by failing to stop and notify the hotel clerk he had hit the retaining wall, which caused some minor damage to private property)
	Awarded: RIR FOP RESTR EPD  Suspended:  FOP

SCM:  1

- 20090121:	Article 86 (Absence without leave - fail to report to appointed place of duty on 20090116, 20090117, and 20090118)
	Article 92 (Failure to obey order or regulation)
	Sentence: CONF 30 days (20090121-20090213, 24 days) FOP RIR E-1

SPCM:  NONE	CC:  NONE

Retention Warning Counseling:  2

- 20090107:	For misconduct, specifically, my recent NJP for violation of Articles 92, 95, and 109 of the UCMJ held on 20090107.

- 20090925:	For your failure to maintain and properly secure your gear.  As a result of your negligence, your magazine pouch, combat leader gloves, and your Goretex desert jacket were lost while in the laundry room unsupervised.  It is a Marine’s responsibility to maintain and keep good accountability of his gear from the moment he signs for it at a consolidated issue facility.

Administrative Corrections to the Applicant’s DD 214

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

	Block 24, Character of Service, should read: “UNDER OTHER THAN HONORABLE CONDITIONS”

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:	☐

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.

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

Applicant’s Issues

1.	The Applicant contends his Nonjudicial Punishments (NJPs) did not exhibit a pattern of willful misconduct.
2.	The Applicant contends there were procedural errors with his Summary Court-Martial.
3.	The Applicant contends his misconduct was mitigated by combat-related Post-Traumatic Stress Disorder (PTSD) and Traumatic Brain Injury (TBI).

Decision

Date:  20130627	DOCUMENTARY REVIEW	Location: Washington D.C.	 Representation: Civilian Counsel

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 PTSD and 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 Applicant’s service record documents completion of a deployment in the Al-Anbar Province of Iraq from April to October 2008, conducting combat operations in support of Operation IRAQI FREEDOM.

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.  The Applicant’s record of service included two 6105 counseling warnings, three nonjudicial punishments (NJPs) for violations of the Uniform Code of Military Justice (UCMJ): Article 92 (Failure to obey order or regulation, 2 specifications), Article 95 (Resisting apprehension, flight, breach of arrest, and escape, 1 specification), Article 109 (Property other than military property of the U.S: loss, damage, destruction, 2 specifications), Article 121 (Larceny, 1 specification), and Article 134 (General Article, 3 specifications), and one Summary Court-Martial for violations of the UCMJ: Article 86 (Absence without leave, 1 specification) and Article 92 (Failure to obey order or regulation, 1 specification).  Based on the offenses committed by the Applicant, his command administratively processed him for separation.  When notified of administrative separation processing using the administrative board procedure, the Applicant exercised his rights to consult with a qualified counsel, submit a written statement, and request an administrative board.

Issue 1:  (Decisional) (Propriety/Equity)  RELIEF NOT WARRANTED.  The Applicant contends his NJPs did not exhibit a pattern of willful misconduct.  Per Paragraph 6210.3, MISCONDUCT, of the Marine Corps Separation and Retirement Manual, a pattern of misconduct is defined as “a minimum of TWO incidents occurring within one enlistment is required.  Misconduct occurring in an extension of an enlistment is considered to be within one enlistment.  The infractions may be minor or more serious.  There must be discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline.  The misconduct need not have been the subject of NJP or military or civilian conviction….  The incidents of misconduct do not have to be of the same nature.  Separation processing may not be initiated until the Marine has been counseled per paragraph 6105.”  During the Applicant’s enlistment, his command found him guilty of numerous UCMJ violations at three NJPs and one Summary Court-Martial.  Additionally, he received two 6105 retention warnings.  Finally, the Applicant elected to appear before an administrative separation board, which voted 3-0 that the preponderance of the evidence proved all acts alleged in the notification of separation for a Pattern of Misconduct and unanimously recommended separation Under Other Than Honorable Conditions without suspension.  The battalion and regimental commanders concurred with the board’s recommendations, and the Separation Authority (Commanding General, 2nd Marine Division) accepted the recommendations and ordered the Applicant to be discharged.  After reviewing the Applicant’s affidavits concerning the events surrounding the offenses and the arguments provided by his counsel, the NDRB determined his discharge was proper and equitable.  Relief denied.

Issue 2:  (Decisional) (Propriety/Equity)  RELIEF NOT WARRANTED.  The Applicant contends there were procedural errors with his Summary Court-Martial.  After a complete review of the Summary Court-Martial proceedings, the NDRB determined there were no errors of a substantial nature to change the court-martial’s outcome.  The Applicant pled guilty to the charges, and the NDRB determined his PTSD and TBI did not mitigate or excuse the misconduct, nor did it affect his ability to voluntarily plead guilty.  Relief denied.

Issue 3:  (Decisional) (Propriety/Equity)  RELIEF NOT WARRANTED.  The Applicant contends his misconduct was mitigated by combat-related PTSD and TBI.  The NDRB did not find any reference to a medical diagnosis of PTSD in the Applicant’s service record to support his claim, and the Applicant did not provide any documentary evidence of a medical diagnosis by competent medical authorities to support his claim.  The Applicant’s submissions, however, did include the diagnosis of an Axis I: Psychosis, tic, and flat presentation.  The Applicant also submitted eight letters from family members attesting to the detached and markedly different personality traits of the Applicant upon his return from Iraq.  Though the Applicant may feel that PTSD and TBI were the underlying causes of his misconduct, the record reflects willful misconduct that demonstrated he was unfit for further service.  The Applicant was found guilty, both pre-deployment and post-deployment, of violating numerous UCMJ articles at three NJPs and a Summary Court-Martial.  Additionally, the Applicant’s record reflects his personal statement to the administrative board, “I have been in the Marine Corps for two years now and during that time I went on a deployment to Fallujah as an 0311.  In Fallujah I was the automatic rifleman.  After three months I started driving a MRAP for 3/6 India company third platoon.  I did not have any problems overseas and picked up rank.  I love my job as a grunt and would do anything to stay.”  After an exhaustive review of both medical and service records and the significant documentation provided by the Applicant, including Enclosures 5 and 10 that were submitted in June 2013 at the request of the NDRB, the NDRB determined PTSD and TBI did not mitigate or excuse his misconduct.  There was nothing in the records to show that he was not responsible for his actions or should not be held responsible for his misconduct.  The NDRB determined his discharge Under Other Than Honorable Conditions for a Pattern of Misconduct was warranted, proper, and equitable.  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.

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 	RESTR - Restriction	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	CBW - 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