Upgrade.Vet

USMC | DRB | 2006_Marine | MD0600673

Original file (MD0600673 .rtf) Auto-classification: Denied

ex-LCpl, USMC
MD06-00673

Current Discharge and Applicant’s Request

Application Received: 20060419 Characterization Received:
Narrative Reason: SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL
Authority: MARCORSEPMAN 6419

Applicant’s Request:     Characterization change to: HONORABLE
                           Narrative Reason change to:
Representative:                   C ivilian Counsel
Applicant’s Issues:      1. Diagnosed PTSD was a mitigating factor in discharge characterization.
2. Record of service.


Decision

By a vote of 5-0 the Characterization shall change to GENERAL (UNDER HONORABLE CONDITIONS ).
By a vote of 3-2 the Narrative Reason shall remain SEPARATION IN LIEU OF TRIAL BY COURT MARTIAL.

Date: 20071024 PERSONAL APPEARANCE HEARING        Location: Washington D.C. R epresentation: Civilian Counsel

Discussion

Issue 1 (Equity). The Board reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis. If such a review reveals an impropriety or inequity, relief is in order. Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval service. There is credible evidence in the record that the Applicant committed misconduct. The Applicant does not deny this misconduct. However, th e medical evidence of record is conflicting on whether or not the Applicant was responsible for h is c onduct or whether he should be held accountable for h is actions. A civilian psychiatrist , who has been treating the Applicant since 2006 , agrees and supports the medical diagnosis of PTSD and the associated recommendation from the Head, Neuropsychiatry Department, Naval Hospital. The NDRB considered the diagnosed PTSD as a mitigating factor associated with the Applicant’s in service misconduct on 19901230. Additionally, t he NDRB noted the absence of any documented adverse conduct in the record before the incident on 19901230. The NDRB found that there w as an i nequity in the Applicant’s discharge action, is convinced that this inequity was prejudicial to the Applicant, and therefore an i nequity in the characterization did occur. The discharge is upgraded from Other Than Honorable Conditions to General (Under Honorable Conditions); the reason remains Separation In Lieu of Trial by Court Martial.

Issue 2 (Equity). When a Marine’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions. A general ( under honorable conditions ) discharge is warranted when significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record. Disregarding the conduct which was mitigated on 19991230, the Applicant’s conduct during the current period of service, which forms the primary basis for determining the character of his service was marred a guilty plea to UCMJ Article 91 . Marines may be separated upon their request in lieu of trial by special or general courts-martial if charges have been preferred with respect to an offense for which a punitive discharge is authorized and it has been determined that the Marine is unqualified for future military service. The Applicant, after consultation with Defense Coun sel , willfully signed the request. A v iolation of UCMJ Article 92 is considered a serious offense for which a punitive discharge is authorized if adjudged by a Special or General Courts Martial.

In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Medical and Service Record Entries , Discharge Process and evidence submitted by the Applicant, t he Board found that

Summary of Service

Prior Service:
Inactive: USMCR (DEP)    19850621 - 19850702
Active: USMC             19850703 – 19890323      HON
Period of Service Under Review:
Date of Enlistment: 19890324      Years Contracted : ; Extension:                   Date of Discharge: 19910612
Length of Service: 0 2 Yrs 02 Mths 1 2 D ys                  Lost Time: 0 Days UA: 0 Days Confined/IHCA: 0
Education Level:         Age at Enlistment: 22     AFQT: 32          MOS: 3043 Highest Rank: CORPORAL
Proficiency/Conduct marks (# of occasions):      4.4 (2 )/ 4.6 ( 2 )
Awards and Decorations (per DD 214): RIFLE EXPERT BADGE, PISTOL SHARPSHOOTER BADGE, SEA SERVICE DEPLOYMENT RIBBON (1 STAR), GOOD CONDUCT MEDAL, MERITORIOUS UNIT COMMENDATION

Medical/Service Record Entries Related to Characterization of Service or Basis for Discharge

19 901230:        Applicant admitted to U.S. Navy Fleet Hospital 5 Psychiatry after unauthorized firing of his rifle. Discharged 19910103.
         Diagnosis:
         I: Acute Combat Stress Reaction with Dissociative Features: RESOLVED.
         II: Personality Disorder, NOS with Histrionic, Passive-Aggressive features
         III: No contributory medical problems.
         IV: Stressor: Combat z one deployment and anticipation of combat.
         V: Best Function: GOOD, including service adjustment.
         Recommendations:
1.       Return to full duty, psychiatrically fit for same.
2.       There is no psychiatric contraindic a tion to appropriate disciplinary disposition of any charges. He is competent to participate in his defense.
3.       There is no present psychiatric contraindic a tion to carrying arms. Risk of further decompensation of personality disorder is balanced by well-documented observation that persons recovering from combat stress reactions (CSR) tend not to experience similar problems again (recur at a rate of 1% compared to base rate of 28-30% total casualties for first CSR.)
W_ W. M_, CDR, MC, USNR, Head, Psychiatry Division

19910209:        Forensic Psychiatric Evaluation report from Head, Neuropsychiatry Department, U.S. Navy Fleet Hospital Fifteen.
         Diagnosis:
         I: A djustment disorder with disturbance of conduct dissociative disorder, NOS
         II: Personality Disorder, NOS (schizotypal and dependent features)
         III: No contributory medical problems.
         IV: Severity of psychosocial stressors: severe-combat deployment, separation from family, severe childhood physical abuse.
         V: Level of adaptive functioning : GOOD .
         Selected notes:
4. It is the opinion of the undersigned; arrived at with a reasonable degree of medical psychiatric certainty the SNM was in a dissociative state when the alleged misconduct occurred.
6. It is the opinion of the undersigned that the above described dissociative state so disrupted the integrated cognitive capabilities of the SNM, that he was substantially unable to reflect upon his conduct or weigh alternatives at the timer of the alleged misconduct. The impairment was of such degree that a reasonable, ordinary man could easily establish reasonable doubt as to the capability of the SNM to form the specific intent to commit the crimes of which he stands charged.

19930429 :        NDRB documentary record review Docket Number MD 92 - 01366 conducted. Determination: discharge is proper as issued and no change is warranted.

SEPARATION IN LIEU OF TRIAL

Discharge Process

Charge(s) Preferred:                                19910309
Charge(s) and Specification(s): Article (s) 91 assault on an NCO, 92 inserting a loaded magazine into service weapon, 121, stealing a magazine with 5.56mm rounds inside, and two specifications of 134, discharging a firearm with as to endanger human life.
Date Applicant Submitted SILT request:            19910314
         Consulted with or Waived Counsel:                 19910312
         Acknowledged Understanding Elements:     19910314
Acknowledged Guilt to:   Article 91 : On or about 19910216 assault Sgt _C by hitting him in the face with a closed fist.
Article 92: On or about 19901230 failed to obey a lawful order by wrongfully inserting a loaded magazine and chambering a 5.56mm round into an M-16A2 service rifle.
         BCD/DD authorized for offense(s)                  YES
         Acknowledged Consequences of OTH:        YES 19910314
         Type of Characterization Requested:      UNDER OTHER THAN HONORABLE

Commanding Officer Recommendation (date):        UNDER OTHER THAN HONORABLE
SJA review (date):                                  SUFFICIENT IN LAW AND FACT (19910321)
Separation Authority (date):     COMMANDING GENERAL, FIRST SERVICE SUPPORT GROUP ( 19910322 )
         Reason for Discharge directed:            SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL
         Characterization directed:                         UNDER OTHER THAN HONORABLE CONDITIONS
Date Applicant Discharged :                19910612

NDRB documentary record review :          19930429

Types of Documents Submitted by Applicant and Considered By Board

Related to Military Service:     Service and/or Medical Record:          Other Records:

Related to Post-Service Period:
         Employment:                        Finances:                          Education:
         Health/Medical Records:                   Substance Abuse:                           Criminal Records:
         Family/Personal Status:                   Community Service:                References:

Additional Statements From Applicant:    From Representative:              Other Documentation (Describe)

Other documentation: NDRB documentary record review Docket Number MD 92 - 01366

Pertinent Regulation/Law

A . Paragraph 6419, SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16 D ), effective 27 Jun 1989 until 17 Aug 1995 .

B. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part IV , Para 403m(7)(b), Presumption Concerning Court-Martial Specifications .

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 s 91 and 92.

ADDENDUM: Information for the Applicant

Complaint Procedures : If you believe that 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 : Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years from the 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. If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

Service Benefits: The Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board. 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 Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the Board’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 Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes. Additionally, the Board 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 subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended. The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings. If the action includes either a punitive or administrative discharge for misconduct, 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 “PTSD.” Only the Board for Correction of Naval Records can grant this type of narrative reason change.

Automatic Upgrades - There is no law or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving Naval service. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge 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. Examples of documentation that may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.

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 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.

Board Membership: The names and votes of the members of the 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

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USMC | DRB | 2006_Marine | MD0600673

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