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

Docket No. MD14-00982

ex-Pvt, USMC

Current Discharge and Applicant’s Request

Application Received:  20140408
Characterization of Service Received:  (per DD 214) UNDER OTHER THAN HONORABLE CONDITIONS
Narrative Reason for Discharge:  (per DD 214) MISCONDUCT
Authority for Discharge:  (per DD 214) MARCORSEPMAN 6210.6 [COMMISSION OF A SERIOUS OFFENSE]

Applicant’s Request:	Characterization change to: HONORABLE
	Narrative Reason change to: NONE REQUESTED

Summary of Service

Prior Service:
Inactive:	USMCR (DEP)	19980415 - 19980616  COG	Active:	USMC	19980617 - 20020616  HON
				USMC	20060817 - 20091015  HON

Period of Service Under Review:
Date of Current Enlistment:  20091016	Age at Enlistment:  30
Period of Enlistment:  4 Years  11 Months
Date of Discharge:  20120713	Highest Rank:  SERGEANT
Length of Service:  02  Year(s)  08  Month(s)  28  Day(s)
Education Level:  12	AFQT:  51
MOS:  0511
Fitness Reports:  AVAILABLE

Awards and Decorations (per DD 214):	Rifle EX (3) Pistol SS SSDR (4) GCM (2) NDSM GWOTSM MUC (2) LoA (4) GWOTEM LoC HSM NMCAM

Periods of UA/CONF:  UNABLE TO DETERMINE

Time lost per DD214: 20120101 - 20120105, 5 days

NJP:  1

- 20111027:	Article 116 (Riot or breach of peace) 
	Article 134 (General Article, 2 specifications)
	Specification 1: On or about 20111006, you were heavily intoxicated to the point that you were no longer able to make sound judgments
	Specification 2: Specifics Not Found in Record
	Awarded: RIR FOP RESTR EPD  Suspended:  RIR [Vacated on 20111231]

SCM:  NONE	CC:  NONE

SPCM:  1

- 20120531:	Article 92 (Failure to obey order or regulation, 2 specifications)
	Article 134 (General Article, 2 specifications)
	Specification 1: Drunk and disorderly
	Specification 2: Unlawful entry
	Sentence: RIR E-1 CONF 73 days (Dates NFIR) BCD
	[Pre-trial agreement: Punitive discharge will be suspended until the administrative separation process is complete.]

Retention Warning Counseling:  1

- 20111027:	For violation of Article 134 x2 and Article 116.

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.

C.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Articles 92, 116, and 134.

DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

1.	The Applicant contends he served honorably for 9 years.
2.	The Applicant contends a 1999 Traumatic Brain Injury (TBI) that was not diagnosed until 2012, witnessing his best friend’s suicide, and alcohol abuse impacted his behavior.  He further contends his commanding general stated that his TBI did have an impact on his behavior.

Decision

Date:  20140710	     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 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 incurred an injury in 1999 resulting in a TBI that was not diagnosed until 2012.  The NDRB could not determine if the Applicant’s TBI was incurred during a contingency operation.

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 in his current enlistment included one 6105 counseling warning, one nonjudicial punishment (NJP) for violations of the Uniform Code of Military Justice (UCMJ): Article 116 (Riot or breach of peace) and Article 134 (General Article, 2 specifications), and one special court-martial (SPCM) for violations of the UCMJ: Article 92 (Failure to obey order or regulation, 2 specifications) and Article 134 (General Article, 2 specifications: Drunk and disorderly and Unlawful entry).  The Applicant was sentenced to a Bad Conduct Discharge at his Special Court-Martial, however, as per a pre-trial agreement, the Bad Conduct Discharge was suspended until the administrative separation process was complete.  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 for Misconduct (Serious Offense) and Misconduct (Pattern of Misconduct), the Applicant exercised his right to consult with a qualified counsel but waived his rights to submit a written statement and request an administrative board.

Issue 1:  (Decisional) (Propriety/Equity)  RELIEF NOT WARRANTED.  The Applicant contends he served honorably for 9 years.  The Applicant received Honorable characterizations of service for two previous enlistments.  Each period of enlistment is an independent obligation and characterization is determined for that specific period of time.  During his third enlistment, he received a retention warning, was found guilty at NJP for violating UCMJ Articles 116 and 134, and was convicted at a Special Court-Martial for violating UCMJ Articles 92 and 134.  Since 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 member 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.

Issue 2:  (Decisional) (Propriety/Equity)  RELIEF NOT WARRANTED.  The Applicant contends a 1999 TBI that was not diagnosed until 2012, witnessing his best friend’s suicide, and alcohol abuse impacted his behavior.  He further contends his commanding general stated that his TBI did have an impact on his behavior.  The record shows that on 14 June 2012, the Group Surgeon, Marine Aircraft Group 12 determined the Applicant had a TBI and a medical condition that may have a material impact on his behavior.  In a 2 July 2012 letter from the Commanding General, 1^st Marine Aircraft Wing, he stated that “a physician determined the Respondent suffers from TBI and it may have a material impact on his behavior.  I have considered the Respondent’s medical background in making my decision.”  The Commanding General then ordered the Applicant to be discharged Under Other Than Honorable Conditions for Misconduct.  Therefore, the NDRB determined the Applicant’s medical condition was given proper consideration when ordering the Under Other Than Honorable Conditions discharge.  After an exhaustive review, the NDRB determined the Applicant’s TBI, friend’s suicide, and alcohol abuse did not mitigate his misconduct, and 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