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

Docket No. MD14-01769

ex-LCpl, USMC

Current Discharge and Applicant’s Request
Application Received:  20140904
Characterization of Service Received:  (corrected) UNDER OTHER THAN HONORABLE CONDITIONS
Narrative Reason for Discharge:  (corrected) MISCONDUCT
Authority for Discharge:  (per DD 214) MARCORSEPMAN 6210.6 [COMMISSION OF A SERIOUS OFFENSE]

Applicant’s Request:	Characterization change to: GENERAL (UNDER HONORABLE CONDITIONS)
	Narrative Reason change to: NONE REQUESTED

Summary of Service
Prior Service:
Inactive:	USMCR (DEP)	20021122 - 20030622  COG	Active:	USMC	20030623 - 20061003  HON
				USMC	20061004 - 20110401  HON
Period of Service Under Review:
Date of Current Enlistment:  20110402	Age at Enlistment:  27
Period of Enlistment:  4 Years  0 Months
Date of Discharge:  20140131	Highest Rank:  SERGEANT
Length of Service:  02  Year(s)  10  Month(s)  00  Day(s)
Education Level:  12	AFQT:  56
MOS:  0161
Fitness Reports:  AVAILABLE

Awards and Decorations (per DD 214):	Rifle MM GCM (3) GWOTSM GWOTEM SSDR NDSM LoA CoA (2) LoC CoC

Period IHCA:  20131212 - 20140106, 26 days

NJP:  NONE	SCM:  NONE	SPCM:  NONE

CIVIL ARREST:  1

- 20131212:	Charges:  False imprisonment, assault in the third degree, criminal mischief, and harassment

CC:  1

- NFIR:	Offense:  Harassment and 3 Class misdemeanor
	Sentence:  Probation 2 years, Fine $1464.50, Protective order 2 years

Retention Warning Counseling:  2

- 20130913:	For your assignment to Marine Corps BCP.

- 20131028:	For your demonstrated trend of sub-standard physical performance from 20130628 through 20131028.  Specifically, you were identified to be out of height and weight standards on 20130628 and provided written counseling on 20130701 and 20130913 regarding being out of Marine Corps height and weight standards.  Since initial notification you have been weighed in on 20130905 and 20131028.  During the September weigh-in you were measured at 75 inches, 251 pounds and 23% body fat.  This significant increase in body fat is counter to the guidance provided at the time of notification.  Per the NAVMC 11621 BCP evaluation form completed by the command and the Marine, it specifically addresses the importance of a graduated weight loss in order to be removed from the BCP program.  The NAVMC 11621 form also states that if SNM is still over his max allowable height/weight and body fat percentage at the end of the 1st six months of assignment, and a trend of improvement is not apparent, then you will not qualify for a 2nd assignment period.  Currently, you are not on a trend of improvement and it must change.

NDRB Documentary Review Conducted (date):	20140731
NDRB Documentary Review Docket Number:	MD14-00784
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 18, Remarks, should contain the statement: “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 030623 UNTIL 110401”
	Block 24, Character of Service, should read: “UNDER OTHER THAN HONORABLE CONDITIONS”
	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 P1900.16E), 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 Article 128.

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

Applicant’s Issues

1.	The Applicant seeks an upgrade to enhance employment opportunities.
2.	The Applicant contends his post-traumatic stress disorder (PTSD) was a mitigating factor in his misconduct.
3.	The Applicant contends he warrants an upgrade based on his 12 years of honorable in-service conduct.

Decision

Date:  20150313	PERSONAL APPEARANCE HEARING	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 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’s service record documents the Applicant earned the Global War on Terrorism Expeditionary Medal for the completion of a deployment in Iraq from February to August 2004, 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 Board did complete a thorough review of the circumstances that led to his discharge and the discharge process to ensure his discharge met the pertinent standards of equity and propriety.  The Applicant’s record of service for his third enlistment included two 6105 counseling warnings, one civilian arrest, and one civilian conviction.  Based on the offense(s) 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, submit a written statement, and request an administrative board.  His administrative separation board found that a preponderance of the evidence proved all acts or omissions alleged in the notification and recommended separation from the Marine Corps UNDER OTHER THAN HONORABLE CONDITIONS.  The Separation Authority concurred with the administrative separations board’s findings and ordered their recommendation executed.

Issue 1:  (Nondecisional) The Applicant seeks an upgrade to enhance employment opportunities.  The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment.  Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.

Issue 2:  (Decisional) (Equity)  RELIEF NOT WARRANTED.  The Applicant contends his post-traumatic stress disorder (PTSD) was a mitigating factor in his misconduct.  The NDRB noted the Applicant’s statements during the hearing and the records received during the NDRB’s review of this case from the U.S. Department of Veterans Affairs (VA) indicates he is currently receiving assistance for his mental health concerns.  The VA determines the eligibility for enrollment independent of the Applicant’s characterization of service as determined by the Marine Corps.  The assistance the Applicant is receiving is either based upon the VA announcement concerning special access to combat veterans discharged under other than dishonorable conditions and/or the Applicant’s two prior HONORABLE enlistments.  The NDRB notes that it is not bound by VA decisions, nor do VA decisions have any bearing on the decisions of the NDRB.

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 records received from the VA documented several requests for evaluation, diagnosis, and findings of PTSD and other mental health concerns.  Furthermore, while the NDRB did find several references to a medical diagnosis of PTSD in the Applicant’s service record, the diagnosis was revised to anxiety, adjustment disorder, and personality disorder by a certified psychologist at the time of his discharge as well as medical notes stating malingering was suspected.  The Applicant did not provide any additional documentary evidence of a medical diagnosis of PTSD by competent medical authorities to support his claim; however, the NDRB acknowledged his current mental health diagnosis and ten percent rating by the VA for PTSD.  The NDRB noted that the Applicant was rated at ten percent having failed to report to his psychological evaluation with the VA conceding his “…exposure to stressors for PTSD based on [his] receipt of the Global War on Terrorism Expeditionary Medal…” with the additional caveat that “…regardless of the diagnosis nomenclature, all mental disorders are rated according to the same criteria per CFR 4.130.”  During the Applicant’s hearing he stated he did not show up for his evaluations due to his civil incarceration, but stated that he currently utilizes VA treatment and educational programs.  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 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.  Failing alcohol rehabilitation treatment; civil arrest for false imprisonment, assault in the third degree, criminal mischief, and harassment; and a civil conviction for harassment and a third class misdemeanor were all conscious decisions that violate the tenants of honorable and faithful service.  Relief denied.

Issue 3:  (Decisional) (Equity)  RELIEF NOT WARRANTED.  The Applicant contends he warrants an upgrade based on his 12 years of honorable in-service conduct.  As stated in the Applicants document review, the Applicant completed his first two enlistment periods with an Honorable characterization of his service for that period of service; however, each period of enlistment is an independent obligation, and characterization of service is determined for that specific period.  Characterization of service at discharge is the recognition of a service member’s performance and conduct during a period of enlistment and is not necessarily dependent upon the narrative reason for separation.  The Applicant was administratively separated and not separated upon expiration of enlistment or fulfillment of service obligation due to his alcohol rehabilitation failure and this commission of a serious offense as evidenced by his civil arrest and conviction.  A servicemember may be processed for separation for the commission of a serious military or civilian offense when the offense or a closely related offense is a violation of the UCMJ and warrants a punitive discharge in accordance with the Manual for Courts-Martial.  There is no requirement for adjudication by judicial or non-judicial proceedings, but the offense must be substantiated by a preponderance of the evidence.  The record of evidence clearly shows the Applicant exercised his right to trial in a civilian court and an administrative separation board.  The record shows the Applicant contested the charges against him and was found guilty at trial and his administrative board found that the preponderance of evidence proved all allegations against him.  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.

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 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