Title: DEPARTMENT OF THE NAVY
Author: CAP
Last saved by: Vasquez, Catalina M CPL CORB, PEB
Company: NCPB

Docket No. MD14-00494

ex-Pvt, USMC

Current Discharge and Applicant’s Request

Application Received:  20140124
Characterization of Service Received:  (per DD 214) UNDER OTHER THAN HONORABLE CONDITIONS
Narrative Reason for Discharge:  (corrected) 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)	20000908 - 20001210  COG	Active:	NONE

Period of Service Under Review:
Date of Current Enlistment:  20001211	Age at Enlistment:  19
Period of Enlistment:  4 Years  0 Months
Date of Discharge:  20040114	Highest Rank:  LANCE CORPORAL
Length of Service:  03  Year(s)  01  Month(s)  04  Day(s)
Education Level:  12	AFQT:  35
MOS:  0411
Proficiency/Conduct Marks (# of occasions):  4.0 (7) / 3.4 (7)	Fitness Reports:  NOT APPLICABLE

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

NJP:  5

- 20010815:	Article 121 (Larceny and wrongful appropriation, stole a cellular phone)
	Awarded: FOP RESTR EPD   Suspended:  RESTR EPD 

- 20011221:	Article 121 (Larceny and wrongful appropriation, stole a personal phone code and make numerous long distance phone calls)
	Awarded: FOP RESTR EPD   Suspended:  FOP

- 20020521:	Article 86 (Absence without leave, from appointed place of duty) 2 specifications
	Awarded: FOP RESTR EPD  Suspended:  NONE 

- 20021203:	Article 91 (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer) 
	Article 92 (Failure to obey order or regulation)
	Awarded: FOP RESTR   Suspended:  RESTR

- 20030131:	Article 134 (General article – Restriction, breaking) 
	Awarded: FOP RESTR   Suspended:  RESTR

SCM:  2

- 20011005:	Article 91 (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer)
	Article 107 (False official statement)
	Article 113 (Misbehavior of sentinel)
	Sentence: FOP CONF 30 days (20011005-20011028, 24 days) RIR E-1

- 20030903:	Article 86 (Absence without leave, from appointed place of duty)
	Article 92 (Failure to obey order or regulation, wrongfully having a pierced nipple)
	Sentence: CONF 30 days (20030903-20030926, 24 days) FOP

SPCM:  NONE

CC:  NONE

Retention Warning Counseling:  1

- 20011214:	For disrespect toward a NCO, underage drinking, false official statement, and sleeping on post. 

NDRB Documentary Review Conducted (date):	20090625
NDRB Documentary Review Docket Number:	MD08-01688
NDRB Documentary Review Findings:		Proper as issued and that no change is warranted.

Administrative Corrections to the Applicant’s DD 214

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

	Block 28, Narrative Reason for Separation, should read: “MISCONDUCT”
	
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 seeks VA benefits.
2.	The Applicant contends his separation is based on one principal incident.
3.	The Applicant contends he was bullied and hazed.
4.	The Applicant contends PTSD mitigates his misconduct.
5.	The Applicant contends he lacked the ability to serve satisfactorily.

Decision

Date:  20141117	PERSONAL APPEARANCE HEARING	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

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.  As a result of the Applicant’s claim of PTSD or 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 stated that he was diagnosed with PTSD related to his combat service in Iraq.  The Applicant’s service record documents completion of a deployment Iraq in 2003 conducting combat service support operations in support of Operation IRAQI FREEDOM.  The Applicant’s record of service included one 6105 counseling warning, five nonjudicial punishments (NJPs) for violations of the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave, 2 specifications), Article 91 (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer), Article 92 (Failure to obey order or regulation), Article 121 (Larceny and wrongful appropriation, 2 specifications), and Article 134 (General article – Restriction, breaking); and two summary court-martial (SCM) for violations of the UCMJ: Article 86 (Absence without leave, from appointed place of duty), Article 91 (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer), Article 92 (Failure to obey order or regulation, wrongfully having a pierced nipple), Article 107 (False official statement), 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 rights to consult with a qualified counsel and request an administrative board.  The administrative board voted three to zero that the preponderance of the evidence supported that the Applicant had a pattern of misconduct and recommended the Applicant be separated with an Under Other Than Honorable Conditions characterization.

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) (Equity)  RELIEF NOT WARRANTED.  The Applicant contends his separation is based on one principal incident.  The Applicant further contends that he did have several issues early in his military career but he matured over time and performed as an exemplary Marine.  Although the Applicant’s final incident of misconduct warranted separation in its own right, the record clearly shows that the Applicant had significant misconduct throughout his enlistment.  Additionally, the record clearly shows that the Applicant was separated based on his pattern of misconduct and not just his final incident.  The Applicant served less than three years of service prior to being notified of separation.  In this relatively short period, the Applicant was found guilty at five NJPs and two SCMs.  The Applicant’s numerous occasions of adjudicated misconduct clearly demonstrated the Applicant’s unwillingness to correct his behavior and demonstrated that he was unfit for further service.  Relief denied.

Issue 3:  (Decisional) (Propriety/Equity)  RELIEF NOT WARRANTED.  The Applicant contends he was bullied and hazed.  The NDRB is not an investigative body, and allegations of wrongdoing should be made to an appropriate law enforcement organization or the Naval Inspector General’s Office.  However, if the Applicant felt there were mitigating circumstances to his misconduct, it was his obligation to contest those charges at the time they were made.  The record indicates the Applicant waived his right to a trial by a special or general court-martial and accepted adjudication at five NJPs and two SCMs.  Additionally, the Applicant had the opportunity to bring forth any mitigating factors at his administrative separation board; however, the administrative separation board determined that the preponderance of the evidence supported that the Applicant had a pattern of misconduct.  The NDRB determined that the evidence provided by the Applicant does not overcome the presumption of regularity in this case and does not warrant mitigation.  Relief denied.

Issue4:  (Decisional) (Equity)  RELIEF NOT WARRANTED.  The Applicant contends PTSD mitigates his misconduct.  The Applicant provided a post-service mental health diagnosis from 29 April 2009 where he was diagnosed with Post Traumatic Stress Disorder, Alcohol Abuse, and Major Depressive Disorder.  Though the Applicant may feel that PTSD was the underlying cause of his misconduct, the record reflects the Applicant displayed willful and persistent misconduct throughout his career to include five NJPs and one SCM prior to his deployment to Iraq.  The Applicant’s significant misconduct prior to his Iraq deployment runs counter to the Applicant’s contention that his PTSD was a casual factor to his incidences of misconduct.  More importantly, the evidence of record did not show that the PTSD was a sufficient mitigating factor to excuse the Applicant’s conduct or accountability concerning his actions.  After an exhaustive review, the NDRB determined that PTSD did not mitigate the Applicant’s misconduct.  Relief denied.

Issue5:  (Decisional) (Propriety/Equity)  RELIEF NOT WARRANTED.  The Applicant contends he lacked the ability to serve satisfactorily.  The Applicant specifically contends that he was just out of high school and could not adjust to the military way of life.  When reviewing a discharge, the NDRB does consider unique circumstances which may affect an Applicant’s ability to conform to the military’s standards of conduct and discipline.  However, the NDRB does not consider the circumstances surrounding the Applicant to be of sufficient nature to excuse the Applicant’s misconduct.  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 is no longer eligible for additional reviews or hearings 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