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USMC | DRB | 2010_Marine | MD1000431
Original file (MD1000431.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20091120
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MARCORSEPMAN

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

Summary of Service

Prior Service:
Inactive:         USMCR (DEP)       19990115 - 19990125     Active:            19990126 - 20030503
                                             20030504 - 20070715

Period of Service Under Review:
Date of Current Enlistment: 20070716     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20081201      H ighest Rank: (Meritoriously)
Length of Service : Y ea r ( s ) M on th ( s ) 16 D a y ( s )
Education Level:        AFQT: 66
MOS: 0121 / 0351 / 0368 / 0918
Fitn ess R eports:

Awards and Decorations ( per DD 214):      Rifle , , PH , w/ DISTINGUISHING DEVICE “V ” , (2) , , , (2) , , (4) , , (3) , MM (10) , CoC (9) , CoA , MCMAGB

Periods of UA / CONF :

NJP:     SCM:     SPCM:          CC:

Retention Warning Counseling :

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:                  Oth er Documentation:    
                  Additional Statements :
         From Applicant:            From /To Representation:            From /To Congress m ember :        








Pertinent Regulation/Law

 A. Paragraph 6419, SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL , 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 IV, Para 403m(7)(b), Presumption Concerning Court-Martial Specifications .

C . 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.       Nondecisional issues: The Applicant seeks restoration of his former rank (Staff Sergeant) based on his contention that his discharge should have been pursuant to medical reasons with a characterization of service of H onorable; as such, he would not have had his rank administratively reduced to E-3 (Lance Corporal) at discharge.

2.       Decisional issues : (1) (Equity) The Applicant contends that his discharge was inequitable , because it was based on one isolated incident in over 9 years of honorable service with no other adverse actions. (2) (Equity) Applicant contends that his discharge was inequitable , because he was suffering from severe mental health issues and was forced to plead guilty to charges relating to misconduct that he did not commit in order to end the 16-month investigation and move on with his life and seek treatment. (3) (Equity) Applicant requests that the NDRB consider his prior service, service to his nation in combat, his awards and decorations for said service, his meritorious promotion, and his medical diagnosis of sever e Post - Traumatic Stress Disorder (PTSD) and Traumatic Brain Injury (TBI), and how these conditions have affected his behavior since return from Iraq.

Decision

Date : 20 1 1 0201            Location: Washington D.C .         R epresentation :

By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall SECRETARIAL AUTHORITY .
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 NDRB 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 identified three decisional issue s to the NDRB . The NDRB completed a thorough review of the circumstances that led to the Applicant’s discharge, and the discharge process, to ensure the discharge met the pertinent standards of equity and propriety. The Applicant entered military service with a waiver for pre-service drug use ( marijuana ) and a waiver for misdemeanor criminal involvement (purchasing alcohol with false identification). He acknowledged his complete understanding of the Marine Corps Policy Co ncerning Illegal Use of Drugs – in writing – prior to his enlistment .

The Applicant’s record of service documents that he is a combat veteran, having served two combat deployments as an infantryman in support of Operation IRAQI FREEDOM. Furthermore, the Applicant was awarded a C ombat A ction R ibbon and a P urple H eart for wounds received in combat . He also received a Navy and Marine Corps Achievement Medal with a combat distinguishing device "V" for valorous act s performed during direct combat with an enemy force . The Applicant’s record of service include s two previous periods of honorable enlistment. Throughout his career, the Applicant had one paragraph 6105 retention-counseling warning that he received early in his first period of honorable enlistment. During the Applicant’s period of enlistment under review, his service record reflects no nonjudicial punishment s or courts martial for violation s of the Uniform Code of Military Justice (UCMJ) .

At the time of administrative separation, the Applicant’s command had preferred charges against him to trial by Special Court - Martial . The NDRB had to presume regularity in the conduct of governmental affairs in that the official service record did not contain a copy of the Applicant’s request for separation in lieu of trial by court - martial. The Applicant was separated i n l ieu of t rial by c ourt - m artial in accordance with paragraph 6419 of the Marine Corps Separation and Retirement Manual (MARCORSEPMAN) as reflected on his D D Form 214 . The NDRB presumed that the separation was properly executed based on evidence in the record of both defense and trial counsel review prior to approval. In order to be separated pursuant to paragraph 6419 of the MARCORSEPMAN, the Applicant was required to submit a signed request seeking an administrative discharge in lieu of a trial by court-martial. The record of evidence documents that the Applicant consulted with counsel and was advised fully of the implications of his request. In his request for separation , t he Applicant was required to declare that he understood that a discharge U nder O ther T han H onorable C onditions might deprive him of virtually all veterans' benefits based upon his current enlistment . Furthermore, he had to declare that he understood that he may expect to encounter substantial prejudice in civilian life in situations where the type of service rendered , or the character of discharge received there from , may have a bearing. The Applicant was also required to state that he understood the elements of the offenses with which he was charged and that he admitted he was guilty of violating those charges . The command accepted the Applicant’s request and the General Court - Martial Convening Authority approved the request , direct ing the Applicant’s separation with a characterization of service of Under Other Than Honorable Conditions and a narrative reason for separation of In Lieu of Trial by Court - Martial .

: (Nondecisional) . The Applicant seeks restoration of his former rank (Staff Sergeant) based on his contention that his discharge should have been pursuant to medical reasons with a characterization of service of H onorable; as such, he would not have had his rank administratively reduced to E-3 (Lance Corporal) at discharge. The NDRB has no authority to restore rank; regulations limit the NDRB’s authority to a review based solely on a determination of the propriety and the equity of a discharge. As such, this specific issue does not serve to provide a foundation upon which the NDRB can grant relief.

Only the Board for Correction of Naval Records (BCNR) may address restoration of rank . The Applicant may petition the BCNR using DD Form 1 49. When requesting a BCNR action, the Applicant should provide as much documentation as possible to support his reason for the change requested. The BC N R’s mailing address is: Board for Correction of Naval Records, 2 Navy Annex, Washington, DC 20370-5100. Further information may be found online at http://www.donhq.navy.mil/bcnr/bcnr.htm .

: (Decisional) ( ) . (1) (Equity) The Applicant contends that his discharge was inequitable , because it was based on one isolated incident in over 9 years of honorable and faithful service with no other adverse actions. (2) (Equity) Applicant contends that his discharge was inequitable , because he was suffering from severe mental health issues and was forced to plead guilty to charges relating to misconduct that he did not commit in order to end the 16-month investigation and move on with his life and seek treatment. (3) (Equity) Applicant requests that the NDRB consider his prior service, service to his nation in combat, his awards and decorations for that service, his meritorious promotion, coupled with his medical diagnosis of sever e PTSD and TBI, and how these conditions have affected his behavior since return from Iraq.

The NDRB 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 the standards of discipline of the Naval service.

The NDRB completed a thorough review of the Applicant’s issues and the discharge process and determined his discharge met the pertinent standard of propriety. However, after a careful review of the Applicant’s combat deployment history , his in-service mental health diagnoses of both sever e PTSD and TBI by the Naval Medical Center, Bethesda and the Walter Reed Army Medical Center , treatment by numerous Veterans Affairs medical centers , extensive medication s , directed in-patient treatment , and ordered holds in mental health facilities for evaluation s , the NDRB determined that the discharge , as awarded, was inequitable . Based on the Applicant's documentation and his official service and medical records, coupled with the facts and circumstances unique to this case, the NDRB determined relief was proper and warranted. After a thorough review of the facts and circumstances unique to this case, the NDRB discerned an inequity in the discharge process and characterization of the Applicant’s service. The NDRB voted unanimously that an upgrade in the characterization of service to Honorable was appropriate and warranted and that the narrative reason for separation shall change to Secretarial Authority .

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and discharge process, the NDRB found Therefore, the awarded characterization of service shall and the narrative reason for separation shall change to SECRETARIAL AUTHORITY.



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 Disable d 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), 2 Navy Annex, Washington, DC 20370-5100 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

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