Title: DEPARTMENT OF THE NAVY
Author: CAP
Last saved by: Garcia-Anglin, Nuchy CIV CORB, NDRB
Company: NCPB

Docket No. MD13-00912

ex-PFC, USMC

Current Discharge and Applicant’s Request

Application Received:  20130314
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: GENERAL (UNDER HONORABLE CONDITIONS)
	Narrative Reason change to: NONE REQUESTED

Summary of Service

Prior Service:
Inactive:	USMCR (DEP)	20080821 - 20081207  COG	Active:	NONE

Period of Service Under Review:
Date of Current Enlistment:  20081208	Age at Enlistment:  18
Period of Enlistment:  4 Years  0 Months
Date of Discharge:  20120822	Highest Rank:  LANCE CORPORAL
Length of Service:  03  Year(s)  08  Month(s)  15  Day(s)
Education Level:  12	AFQT:  50
MOS:  0311
Proficiency/Conduct Marks (# of occasions):  3.8 (9) / 3.8 (9)	Fitness Reports:  NOT APPLICABLE

Awards and Decorations (per DD 214):	Rifle MM ACM (3) SSDR (2) GWOTEM HSM GWOTSM NDSM NATO LoA

Periods of UA/CONF:  NONE

NJP:  3

- 20091120:	Article 91 (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer) 
	Awarded: RESTR EPD FOP  Suspended:  FOP

- 20101124:	Article 92 (Failure to obey order or regulation)
	Awarded: RESTR  Suspended:  NONE 

- 20111004:	Article 113 (Misbehavior of sentinel)
	Awarded: RIR FOP RESTR EPD   Suspended:  RESTR EPD 

SCM:  NONE	SPCM:  NONE	CC:  NONE

Retention Warning Counseling:  3

- 20091120:	For you were found guilty at Company Level NJP for violating Article 91 of the UCMJ 20091120.  

- 20110502:	For you did on or about 20110501 violate a lawful order from the Company Commander by driving in excess of the posted speed limit aboard Camp Lejeune, NC.  You were driving approximately 50 mph in a 35 mph speed zone. 

- 20111004:    For your recent NJP for violation of Article 113 of the UCMJ.

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, MMSB-13, 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 would like to receive Department of Veterans Affairs (VA) benefits.
2.	The Applicant contends he started drinking due to mental health issues, which turned to problems and caused his discharge.

Decision

Date:  20131219	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) symptoms, 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 two deployments to Afghanistan from February to August 2010 and from May to December 2011, in support of Operation ENDURING 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 three 6105 counseling warnings and three nonjudicial punishments (NJPs) for violations of the Uniform Code of Military Justice (UCMJ): Article 91 (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer), Article 92 (Failure to obey order or regulation), and Article 113 (Misbehavior of sentinel).  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 right to consult with a qualified counsel but waived his rights to submit a written statement and to request an administrative board after initially indicating he intended to exercise this right.

Issue 1:  (Nondecisional)  The Applicant would like to receive VA benefits.  The 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.  However, 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 January 28, 2008, combat veterans discharged from active duty on or after January 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.

Issue 2:  (Decisional) (Propriety/Equity)  RELIEF NOT WARRANTED.  The Applicant contends he started drinking due to mental health issues, which turned to problems and caused his discharge.  The NDRB requested all records of medical treatment, both active duty and post-service, from the VA.  The records from the VA failed to document any requests for evaluation, any diagnoses, or any findings of PTSD or other mental health concerns.  Moreover, the Applicant did not provide any evidence of a diagnosis of PTSD from any other private mental health treatment provider other than letters from his grandmother and parents.  The NDRB found no evidence in the record of any indications of, or diagnosis for, PTSD.  

Additionally, there is no evidence in either the Applicant’s service record, or the documentation he provided, that demonstrated any problems or symptoms manifesting from his service in Afghanistan.  Furthermore, the Applicant’s record does not document any attempts to seek help for any combat-stress-related symptoms while in service.  Additionally, alcohol consumption is never a rationale or an acceptable excuse for inappropriate conduct, misconduct, or poor judgment.  The Applicant’s medical record contains a signed statement by the Applicant that he refused substance abuse treatment on 08 May 2012.  Lacking any evidence of PTSD or other service-connected mental health issues, the NDRB determined PTSD or other mental health issues did not mitigate his misconduct.  Further, when offered the opportunity to present his case before an administrative separation board, he waived that right.  After a complete review of the records and documentation submitted by the Applicant, the NDRB determined his discharge 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