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

Docket No. MD14-00333

ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20131213
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)	20061018 - 20070107  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  20070108	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20110826	Highest Rank:  
Length of Service:    Year(s)    Month(s)  19  Day(s)
Education Level:  	AFQT:  66
MOS:  0231
Proficiency/Conduct Marks (# of occasions):   (13) /  (13)	Fitness Reports:  

Awards and Decorations (per DD 214):	Rifle  Pistol   KDSM  

Periods of CONF:  

NJP:  

- 20070711:	Article  (Failure to obey order or regulation)
	Awarded:    Suspended:  

- 20080506:	Article  (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer)
	Article  (Failure to obey order or regulation)
	Awarded:    Suspended:  

- 20100830:	Article  (Failure to obey order or regulation)
	Awarded:    Suspended:  

SCM:  	SPCM:  	CC:  

Retention Warning Counseling:  

- 20080506:	For insubordinate conduct toward a noncommissioned officer and failure to obey lawful orders demonstrating a lack of discipline and respect for authority.

- 20100830:	For failure to obey order or regulation by knowingly participated in a contact sport while you were on light duty, which resulted in a serious injury and NJP.

- 20110303:	For unauthorized absence that occurred on 20110225.

NDRB Documentary Review Conducted (date):	20131001
NDRB Documentary Review Docket Number:	MD13-00231
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 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 seeks employment in law enforcement.
2.	The Applicant contends his captain lied about the Applicant’s leave status and maliciously attacked his integrity.
3.	The Applicant contends he served honorably.
4.	The Applicant contends the Department of Veterans Affairs (VA) determined his service was honorable.
5.	The Applicant contends his post-service conduct is worthy of an upgrade.
6.	The Applicant contends Post-Traumatic Stress Disorder (PTSD) led to his misconduct.

Decision

Date:  20140616		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 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 provided documentation that he was diagnosed with PTSD on 08 March 2011 for non-combat PTSD due to witnessing the death of his friend while home on leave in 2007.  In addition, the Applicant’s counsel contends the Applicant may have a secondary case of PTSD from serving with the 3rd Reconnaissance Battalion from 2007 to 2009 in support of Operation IRAQI FREEDOM and Operation ENDURING FREEDOM.  The Naval Discharge Review Board conducted an exhaustive review of the Applicant’s record to see if he deployed in support of a contingency operation and was, as a consequence of that deployment, diagnosed with either PTSD or Traumatic Brain Injury.  The detailed review of his records revealed that he was assigned to 3rd Intelligence Battalion, that he was never attached to 3rd Reconnaissance Battalion, and that he did not deploy in support of a contingency operation at any point in his enlistment.

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  6105 counseling warnings and   for  of the Uniform Code of Military Justice (UCMJ): Article 91 (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer, one specification) and Article 92 (Failure to obey order or regulation, three specifications).  Based on the offenses committed by the Applicant,  command administratively processed  for separation.  When notified of administrative separation processing using the  procedure, the Applicant   rights to consult with a qualified counsel and request an administrative board.  The board voted 3-0 that the preponderance of the evidence supported the pattern of misconduct and recommended discharge Under Other than Honorable Conditions.  The Separation Authority approved the recommendations.

:  (Nondecisional)  The Applicant seeks employment in law enforcement.  The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities.  Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.

:  (Decisional) ()  .  The Applicant contends his captain lied about the Applicant’s leave status and maliciously attacked his integrity.  The government enjoys a presumption of regularity in the conduct of its affairs.  The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue.  There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that his captain lied or maliciously attacked his character.  The record of evidence clearly shows that the 

Applicant accepted and was found guilty at each of his three NJPs.  The record further shows the Applicant exercised his right to defend himself against the accusations at an administrative separation board, which voted unanimously to recommend an Under Other Than Honorable Conditions discharge.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.  Relief denied.

:  (Decisional) ()  .  The Applicant contends he served honorably.  The Applicant was administratively separated and not separated upon expiration of enlistment or fulfillment of service obligation.  The characterization of service is determined by the quality of the member’s total performance of duty and conduct during the current enlistment, including the reason for separation.  Other considerations shall be given to the member’s length of service, grade, aptitude, and physical and mental condition.  Based on the Applicant’s record of service, the NDRB determined the Applicant engaged in conduct involving one or more acts or omissions that constituted a significant departure from the conduct expected of members of the Naval Service, and the awarded characterization of service was warranted.  Relief denied.

4:  (Decisional) ()  .  The Applicant contends the VA determined his service was honorable.  The NDRB is not bound by VA decisions, nor do VA decisions have any bearing on the decisions of the NDRB.  Decisions reached by the VA to determine if former servicemembers rate certain VA benefits do not affect previous discharge decisions made by the Marine Corps.  The criteria used by the VA in determining whether a former servicemember is eligible for benefits are different than that used by the Marine Corps when determining a member’s discharge characterization.  Relief denied.

5:  (Decisional) ()  .  The Applicant contends his post-service conduct is worthy of an upgrade.  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 his employment history to include certification and documentation, a certificate of marriage, proof of negative employment drug testing, his resume, a letter verifying his college admission and standing, two letters of good standing for each of his accounts with USAA, two character reference letters, his VA PTSD claim paperwork, and extensive oral testimony.  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 documentation submitted by the Applicant does not demonstrate if in-service misconduct was an aberration.  The characterization of service received was appropriate considering the length of service and UCMJ violations.  Relief denied.

6:  (Decisional) ()  .  The Applicant contends PTSD led to his misconduct.  In determining discharge characterization, the Applicant’s conduct forms the primary basis for consideration.  The Applicant’s in-service conduct included three NJPs and three 6105 counseling warnings; this was a willful failure to meet the requirements of his contract honorably.  However, the Applicant contends his PTSD was a mitigating factor in his misconduct.  The Applicant’s official military service record contains a diagnosis of PTSD, which is based upon a non-combat event that resulted in the death of a childhood friend while on leave in his hometown.  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 record shows that both the administrative board and the Separation Authority took the Applicant’s PTSD into consideration.  The Commanding General, 2d Marine Aircraft Wing letter dated 22 August 2011 clearly states that “PTSD/TBI were contributing factors to the misconduct.  However, even in view of his PTSD/TBI symptoms, I have determined that his misconduct is serious enough that it rises to the level of an Under Other Than Honorable Conditions characterization of service.”  After an extensive review of the Applicant’s record of service, the additional documentation he provided, and his detailed oral testimony, the NDRB determined PTSD did not mitigate his disobedience of the orders and directives that regulate good order and discipline in the Naval Service, demonstrating he was unsuitable for further service.  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 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

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