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

Docket No. MD13-01374

ex-Pvt, USMC

Current Discharge and Applicant’s Request

Application Received:  20130612
Characterization of Service Received:  (per DD 214) BAD CONDUCT DISCHARGE
Narrative Reason for Discharge:  (per DD 214) COURT-MARTIAL
Authority for Discharge:  (per DD 214) MARCORSEPMAN 1105 [COURT-MARTIAL]

Applicant’s Request:	Characterization change to: GENERAL (UNDER HONORABLE CONDITIONS)
	Narrative Reason change to: NONE REQUESTED

Summary of Service

Prior Service:
Inactive:	USMCR (DEP)	20011130 - 20011209  COG	Active:	NONE

Period of Service Under Review:
Date of Current Enlistment:  20011210	Age at Enlistment:  18
Period of Enlistment:  4 Years  0 Months
Date of Discharge:  20060823	Highest Rank:  PRIVATE FIRST CLASS
Length of Service:  04  Year(s)  08  Month(s)  14  Day(s)
Education Level:  12	AFQT:  61
MOS:  0341
Proficiency/Conduct Marks (# of occasions):  3.4 (NFIR) / 3.3 (NFIR)	Fitness Reports:  NOT APPLICABLE

Awards and Decorations (per DD 214):	Rifle MM NDSM CAR SSDR CoC

Periods of UA: 20030710 to 20030712, 3 days; 20030728 to 20030731, 4 days; 20030801 to 20030804, 4 days

CONF (per DD 214): 20021208, 1 day; 20021210 to 20030103, 24 days; 20030805 to 20030929, 55 days

NJP:  3
- 20020702:	Article 92 (Failure to obey order or regulation, wrongfully drinking alcohol underage)
	Awarded: FOP RESTR EPD Suspended:  NONE

- 20021206:	Article 92 (Failure to obey order or regulation, 2 specifications)
	Specification 1: Wrongfully drinking alcohol underage
	Specification 2: Wrongfully wearing a tongue stud
	Article 111 (Drunken or reckless operation of vehicle, aircraft, or vessel, on board Camp Lejeune, NC on or about 0030, 20021030)
	Awarded: CONF 30 days RIR FOP  Suspended:  FOP

- Date Not Found in Record:	  Article 90 (Willfully disobeying a superior commissioned officer)
	Article 121 (Larceny, wrongfully appropriate another Marine’s ATM card and use it to withdraw $510.00)
			  Awarded: NFIR

SCM:  NONE	CC:  NONE

SPCM:  1
- 20030930:	Article 86 (Absence without leave, 20030801 to 20030804)
	Article 112a (Wrongful use, possession, etc., of controlled substances, marijuana, between 20030721 to 20030805)
	Article 134 (General Article, break restriction on or about 20030728)
	Sentence: BCD CONF60 days FOP

CIVIL ARREST:  1

- 20030728:  In hands of civil authorities for 3 days  Charges:  NFIR

Retention Warning Counseling:  1

- 20021210:	For frequent involvement with military authorities, wrongfully consuming alcohol underage, wrongfully wearing a tongue stud, and drunk driving.

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 1105, DISCHARGE ADJUDGED BY SENTENCE OF COURT-MARTIAL, 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 IV, Para 403m(7)(a), Presumption Concerning Court-Martial Specifications.

C.  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 seeks Department of Veterans Affairs (VA) benefits.
2.	The Applicant contends he received awards and served in combat, and his Post-Traumatic Stress Disorder (PTSD) mitigates his misconduct.
Decision

Date:  20131219	DOCUMENTARY REVIEW	Location: Washington D.C.	 Representation: NONE

By a vote of 5-0 the Characterization shall remain BAD CONDUCT DISCHARGE.
By a vote of 5-0 the Narrative Reason shall remain COURT-MARTIAL.

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 to Nasiriyah, Iraq from January to May 2003, 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.  With respect to a discharge adjudged by a court-martial case, 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.  In response to the Applicant’s clemency request, relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts.  The Applicant’s case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency.  The Applicant’s record of service included one 6105 counseling warning, three nonjudicial punishments (NJPs) for violations of the Uniform Code of Military Justice (UCMJ): Article 90 (Willfully disobeying a superior commissioned officer), Article 92 (Failure to obey order or regulation, 3 specifications), Article 111 (Drunken or reckless operation of vehicle, aircraft, or vessel, 1 specification), and Article 121 (Larceny), a civil arrest, and one special court-martial (SPCM) for violation of the UCMJ: Article 86 (Absence without leave, 4 days), Article 112a (Wrongful use, possession, etc., of controlled substances, marijuana between 20030721 to 20030805), and Article 134 (General Article, break restriction on or about 20030728).  The Applicant’s service record documents a punitive conviction and punishment, as adjudged by a Special Court-Martial, on 30 September 2003.  A qualified legal defense counsel represented the Applicant throughout the trial by Special Court-Martial process.  Given the facts of the case, the Special Court-Martial awarded the Applicant a Bad Conduct Discharge, forfeiture of $776 pay per month for two months, and confinement for a period of 60 days.  The case was submitted for review to the U.S. Navy-Marine Corps Court of Criminal Appeals without assignments of error; it was reviewed and the findings were affirmed on 17 March 2006.

Issue 1:  (Nondecisional)  The Applicant seeks VA 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.

Issue 2:  (Decisional) (Clemency)  RELIEF NOT WARRANTED.  The Applicant contends he received awards and served in combat, and his PTSD mitigates his misconduct.  The Applicant served less than two years before being convicted at a Special Court-Martial.  During that less than two years of service, and before deploying to Iraq, he received a retention warning and was found guilty at three NJPs of violating multiple UCMJ articles.  Despite meeting the requirements for administrative separation for Misconduct (Serious Offense) and Misconduct (Pattern of Misconduct), his command allowed him to continue to serve, and he deployed to Iraq in the spring of 2003.  Subsequent to his deployment, he had a civil arrest and was convicted at a Special Court-Martial.  The Applicant contends he was awarded a Good Conduct Medal.  This is incorrect.  To be awarded a Good Conduct Medal, a Marine must serve for three consecutive years without misconduct.  The confusion likely arose from Block 18 on his DD Form 214, which reset the three-year counter based on his last instance of misconduct, which occurred with his Special Court-Martial conviction on 30 September 2003.

The Applicant submitted a personal statement, statements from three family members, in-service medical records, and a statement from a psychiatrist attesting to his PTSD symptoms and diagnoses.  After a thorough review of the Applicant’s service and medical records and documentation submitted by the Applicant, the NDRB determined PTSD did not mitigate his misconduct and clemency is not warranted.  Though the Applicant may feel that PTSD was the underlying cause of his misconduct, the record reflects willful misconduct, both pre-deployment and post-deployment, 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.  Clemency 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 clemency was not warranted.  Therefore, the awarded characterization of service shall remain BAD CONDUCT DISCHARGE and the narrative reason for separation shall remain COURT-MARTIAL.  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