ex-WO, USMC

Current Discharge and Applicant’s Request

Application Received:  20140910
Characterization of Service Received:   
Narrative Reason for Discharge:    (OTHER)
Authority for Discharge:   SECNAVINST 1920.6C

Applicant’s Request:	Characterization change to: 
	Narrative Reason change to: 

Summary of Service

Prior Service:
Inactive:	USMCR (DEP)	19980121 - 19980222  	Active:		19980223 - 20011011  
					20011012 - 20051208  
					20051209 - 20090105  
					20090106 - 20110131  

Period of Service Under Review:
Date of Appointment:  20110201	Age:  
Years Contracted:  Indefinite
Date of Discharge:  20121115	Highest Rank:  WARRANT OFFICER
Length of Service:   Year(s)     Month(s)   15 Day(s)
Education Level:  	AFQT:  72
MOS:  0210 / 0916
Officer’s Fitness reports:  Available

Awards and Decorations (per DD 214):	Rifle  Pistol   (4)  (3)    (2)   (4)    (3)  (3) CoC (7) MM CoA (3) LoA (4)

Periods of UA/CONF:  

NJP:  	SCM:  	SPCM:  	CC:  	Retention Warning Counseling:  

NDRB Documentary Review Conducted (date):	20140612
NDRB Documentary Review Docket Number:	MD14-00264
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:

	  “SECNAVINST 1910.6C”

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.  Secretary of the Navy Instruction 1920.6C (ADMINISTRATIVE SEPARATION OF OFFICERS), effective 
15 December 2005 until Present, establishes policies, standards and procedures for the administrative separation of 
Navy and Marine Corps officers from the naval service in accordance with Title 10, United States Code and DoD 
Directive 1332.30 of 14 March 1997.

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 contends there are multiple errors on his DD Form 214 relating to his discharge.
2.	The Applicant states he would like to re-enter the service.
3.	The Applicant contends he should have been allowed a medical discharge evaluation and retirement.
4.	The Applicant contends he was innocent of the charge of adultery and was denied due process to prove his innocence at a court-martial, a “Show Cause” board, or request mast.  The Applicant further contends he did not violate the no-contact order once it was imposed.
5.	The Applicant’s counsel contends that the cited written refusal of both nonjudicial punishment and court-martial by the Applicant is a legally incorrect concept.
6.	The Applicant contends his discharge did not take into consideration nearly 15 years of service and lacked actual evidence of adultery.
7.	The Applicant believes that his current diagnosis of PTSD should be considered by this board in reviewing his discharge while contending that he committed no in-service misconduct.

Decision

Date:  20141017		Location: Washington D.C.	 Representation: 

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall   (OTHER).

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 stated that he was diagnosed with PTSD related to his combat service in Iraq.  The Applicant’s service record documents completion of a deployment in the Al-Anbar Province of Iraq from April to November 2007, conducting combat service support 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.  The Applicant 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 no 6105 counseling warnings and no misconduct resulting in nonjudicial punishment or court-martial.  However, the Applicant provided a copy of a non-punitive letter of caution for allegations of fraternization, adultery, and mental instability issued to him by his command.  Command investigations substantiated that the Applicant had fraternized with a Marine Staff Sergeant in his occupational specialty and had an unduly familiar relationship with the Staff Sergeant’s wife even after a Military Protective Order (MPO) had been issued requiring him to cease communications with the Staff Sergeant and his family.  Based on the offenses committed by the Applicant, his command administratively processed him for separation.  When notified of administrative separation processing using the notification procedure, the Applicant chose not to tender a resignation and exercised his rights to consult with a qualified counsel, submit multiple written statements in his own defense, and request a review by the Assistant Secretary of the Navy (Manpower and Reserve Affairs).  The Assistant Secretary of the Navy (Manpower and Reserve Affairs) approved the Applicant’s administrative separation on 01 October 2012 with a General (Under Honorable Conditions) service characterization.

:  (Nondecisional) The Applicant contends there are multiple errors on his DD Form 214 relating to his discharge.  The NDRB is limited in scope to reviewing the propriety and equity of a discharge.  It is the responsibility of the former service member to petition Headquarters Marine Corps for corrections to ensure changes not related to the propriety and equity of a discharge are incorporated into the record.

:  (Nondecisional) The Applicant states he would like to re-enter the service.  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.

:  (Nondecisional) The Applicant contends he should have been allowed a medical discharge evaluation and retirement.  Per regulations, the initiation and submission of medical boards are at the discretion of the individual physician.  There is no indication in the evidence of record or in the documentation provided by the Applicant that the Applicant was recommended for or processed for a medical board by proper authority.  Further, the evidence of record does not indicate that proper authority erred by not initiating a medical board for the Applicant.  In the event a medical separation had been considered or recommended, appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons.  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 Board for Correction of Naval Records can grant this type of narrative reason change.  This issue does not provide a foundation upon which the NDRB can grant relief.

4:  (Decisional) ()  .  The Applicant contends he was innocent of the charge of adultery and was denied due process to prove his innocence at a court-martial, a “Show Cause” board, or request mast.  The Applicant further contends he did not violate the no-contact order once it was imposed.  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.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.  The record of evidence clearly shows the Applicant refused nonjudicial punishment and waived his right to trial by court-martial.  If the Applicant felt he was mistakenly charged with a crime, it was his obligation to contest those charges at the time they were made at a trial by court-martial.  During a trial, he would have had the opportunity to mount a defense against the charges.  Furthermore, during his administrative separation proceedings he submitted numerous rebuttal letters with respect to the allegations against him and the findings of official command investigations.  In doing so, he was allowed at least one 17 day extension to complete one of his written rebuttals.  Finally, as a probationary officer he was not entitled to a board or inquiry (also known as a “show cause board”) during his separations proceedings.

The NDRB noted that while there were unproven accusations of adultery during the Applicant’s separation proceedings he was actually separated for fraternization with a Staff Sergeant in his occupational field, establishing an inappropriate relationship with the Staff Sergeant’s spouse and violation of a military protective order (MPO) prohibiting his contact with the Staff Sergeant and his family.  Adultery was not among the misconduct specifications resulting in his separation.  While the Applicant contests his separation on the basis of the inappropriate relationship with the Staff Sergeant’s wife and his violation of the MPO; he admitted to the NDRB that he was guilty of fraternization with the Staff Sergeant and presented minimal mitigation to justify his actions in choosing to fraternize with the Staff Sergeant over an extended period of time.  The NDRB notes that fraternization is a violation of the UCMJ and can result in punitive actions including dismissal, two years confinement, and total forfeiture of pay and allowances.  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.  A preponderance of the evidence reviewed supports the conclusion that the Applicant committed offenses alleged, that separation from the Marine Corps was appropriate, and that a General (Under Honorable Conditions) discharge was warranted.  Relief denied.

5:  (Decisional) ()  .  The Applicant’s counsel contends that the cited written refusal of both nonjudicial punishment and court-martial by the Applicant is a legally incorrect concept.  The NDRB notes that it is highly irregular for a service member to be allowed to refuse both nonjudicial punishment and trial by court-martial; however, the documentation in the record shows that this was indeed the case for the Applicant.  On 12 March 2012 the Applicant signed an “Acknowledgement of Notification of Intent to Hold Article 15 Hearing” in which he first circled that he “would not accept office hours and do not demand trial by court-martial.”  He further circled that he did not request a personal appearance before finally signing the documentation.  During the Applicant’s hearing with the NDRB beginning at approximately 32 minutes into his testimony he stated that when consulting with the senior judge advocate general at II Marine Expeditionary Force, a Marine Colonel, the Applicant stated “…I just told him I do not want a NJP and I do not want a court martial because I’m innocent and this is the reason why, um, and he said ok and we’ll get back to you next week and they did...”.  Given the evidence in the record and the Applicant’s statement during his oral testimony to the NDRB, the NDRB concluded that although it was an irregular occurrence for a service member to be allowed to refuse both NJP and court-martial that it occurred nonetheless.  The result of the Applicant’s refusal of both punitive measures was his command’s decision to begin processing him for a more lenient administrative separation in order to address issues of the Applicant’s suitability as it relates to substandard performance and conduct.  The NDRB found the characterization of the Applicant’s discharge was equitable and consistent with the characterization of discharge given others in similar circumstances.  Relief denied.

6:  (Decisional) ()  .  The Applicant contends his discharge did not take into consideration nearly 15 years of service and lacked actual evidence of adultery.  The NDRB again notes that the Applicant was separated due to fraternization and orders violations and not due to adultery allegations.  Each period of enlistment or service obligation is an independent period and the characterization of service is determined for each specific term of service.  Characterization of service at discharge is the recognition of a service member’s performance and conduct during each specific period of enlistment or service obligation.  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 commissioned officers, and the awarded characterization of service was warranted.  Relief denied.

7:  (Decisional) ()  .  The Applicant believes that his current diagnosis of PTSD should be considered by this board in reviewing his discharge while contending that he committed no in-service misconduct.  When reviewing a discharge, the NDRB does consider the extent to which a medical problem might affect an Applicant’s performance and ability to conform to the military’s standards of conduct and discipline.  However, the NDRB does not consider the circumstances surrounding the Applicant’s stated condition or diagnosis to be of sufficient nature to excuse the Applicant’s misconduct.  The NDRB conducted an exhaustive review of the Applicant’s record and found that, at the time of his discharge, he had no diagnosis of PTSD either prior to his discharge proceedings or during his mental health screening while undergoing his administrative separations processing.  The Applicant’s 3 May 2012 administrative separation mental health screening noted he was undergoing personal counseling, from a civilian provider, for depression and anxiety stemming from family issues.  The Applicant presented a 14 November 2014 letter from a Department of Veterans Affairs psychiatric nurse practitioner stating he currently has a diagnosis of PTSD and major depression related to his military service and has been involved with sporadic mental health services since 2010.  During the Applicant’s NDRB hearing the Applicant explained part of the reason for his sporadic use of mental health services was due to his accepting civilian employment as a contractor in Afghanistan for 13 months in order to maintain his financial obligations.  Both the Applicant and his counsel explicitly stated that they were not presenting his current PTSD diagnosis as mitigation for any of the Applicant’s conduct as they maintain that he was innocent of the charges against him.  The Applicant’s service record is also void of mention of injury from improvised explosive devices or the award of a combat action ribbon.  The government enjoys a presumption of regularity in the conduct of its affairs.  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.  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 remain GENERAL (UNDER HONORABLE CONDITIONS) and the narrative reason for separation shall remain  (OTHER).

The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of  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