ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20131029
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:	NONE		Active:	

Period of Service Under Review:
Date of Current Enlistment:  20030923	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20080102	Highest Rank:  
Length of Service:
	Inactive:	  Year(s)    Month(s)  03  Day(s)
	Active:	  Year(s)    Month(s)  28  Day(s)

Education Level:  	AFQT:  68
MOS:  0614
Proficiency/Conduct Marks (# of occasions):   () /  ()	Fitness Reports:  

Awards and Decorations (per DD 214):	Rifle  

Periods of CONF:  

NJP:  	SCM:  	SPCM:  	CC:  

Retention Warning Counseling:  

- 20070916:	For unauthorized absence from September’s (15-16, 2007) drill.  Applicant not available for signature.

NDRB Documentary Review Conducted (date):	20100107
NDRB Documentary Review Docket Number:	MD09-01188
NDRB Documentary Review Findings:		Proper as issued and that no change is warranted.

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 6213 of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 1 September 2001 
until Present.

B.  Marine Corps Reserve Administrative Management Manual, MCO P1001R.1, Chapter 3, Reserve Participation and Administrative Procedures, paragraph 3300.

C.  Table 6‑1 of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 1 September 2001, Guide for Characterization of Service.

D.  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 wants to have the ability to reenlist and have her RE code changed to RE-1.
2.    The Applicant wants the same protections afforded to sexual assault victims under current guidelines.
3.    The Applicant contends she did not have any misconduct except for missing drills, and her in-service conduct warrants an upgrade to Honorable and a reinstatement to E-3.
4.	The Applicant contends Post-Traumatic Stress Disorder (PTSD) from an in-service sexual assault and being transferred to an all-male reserve unit led to her failure to participate.

Decision

Date:  20140513		Location: Washington D.C.	 Representation: 

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

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 reviewed the Applicant’s record to see if she deployed in support of a contingency operation and was, as a consequence of that deployment, diagnosed with either PTSD or Traumatic Brain Injury.  A review of her record revealed that she did not deploy in support of a contingency operation, and so her case did not warrant an expedited review in accordance with U.S. Code, Title X, Section 1553(d)(1).  However, due to the Applicant’s documented PTSD as a result of military sexual trauma, the NDRB included a Navy psychiatrist on the board.

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 Applicant’s record of service included one retention warning and no misconduct resulting in nonjudicial punishment or court-martial.  However, the record did show that the Applicant had more than 9 missed mandatory reserve drills in a 12 month period.  Based on a failure to participate in required training,  command administratively processed  for separation.  The Applicant’s service records show that her command unsuccessfully attempted phone calls, a visit to her house, and certified mail to notify her of administrative separation processing using the  procedure so that she could be afforded the opportunity to exercise her rights to consult with a qualified counsel, submit a written statement, and request an administrative board.  Her failure to acknowledge the notification of separation proceedings served as a waiver of these rights.  The Applicant was subsequently discharged Under Other Than Honorable Conditions for Failure to Participate.

:  (Nondecisional)  The Applicant wants to have the ability to reenlist and have her RE code changed to RE-1.  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 Board for Correction of Naval Records 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.

:  (Decisional) ()  .  The Applicant wants the same protections afforded to sexual assault victims under the current guidelines.  From the Applicant’s testimony and a review of her records, she reported the sexual assault, her attackers were punished, she frequently sought mental health treatment following the assault, and her command accommodated her request to be transferred.  The NDRB determined her failure to participate in required drills was not mitigated by a lack of protections afforded to sexual assault victims under current guidelines.  Relief denied.

:  (Decisional) ()  .  The Applicant contends she did not have any misconduct except for missing drills, and her in-service conduct warrants an upgrade to Honorable and a reinstatement to E-3.  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 Reserve.  The Applicant’s command was unsuccessful in attempts to contact her for the Competency Review Board that reduced her in rank, she had 18 documented missed drills in a 12 month period, and she provided no mitigating circumstances to her Commanding Officer.  A preponderance of the evidence reviewed supports the conclusion that the Applicant failed to participate, separation from the Marine Corps Reserve was appropriate, and an Under Other Than Honorable Conditions discharge was warranted.  Relief denied.

Issue 4:  (Decisional) ()  .  The Applicant contends PTSD from an in-service sexual assault and being transferred to an all-male reserve unit led to her failure to participate.  The Applicant provided documentation from a psychologist at the Miami, Florida Department of Veteran Affairs working in the PTSD clinic dated April 15, 2013 that stated the Applicant has been diagnosed and is receiving treatment for PTSD.  Furthermore, the letter states the Applicant is receiving treatment as a result of her sexual assault while in the Marine Corps.  The NDRB noted that the Applicant was an excellent performer prior to the assault.  Following the assault, her command accommodated her request for a transfer, she did have access to mental health treatment, and her attackers were punished.  While the Applicant’s discharge for failure to participate was warranted, the NDRB determined her PTSD did mitigate her failure to attend required drills and voted to upgrade her discharge to General (Under Honorable Conditions).  Partial relief granted.  However, the Applicant bears some responsibility for missing required drills and not communicating with her command, and so a further upgrade to Honorable is not warranted.

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 the discharge was proper but not equitable.  Therefore, the awarded characterization of service shall   but the narrative reason for separation shall remain .  The Applicant is not eligible for further reviews by the NDRB.  The Applicant may petition the Board for Correction of Naval Records, 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 for further review using DD Form 149.  Their website can be found at http://www.donhq.navy.mil/bcnr/bcnr.htm.  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