Search Decisions

Decision Text

USMC | DRB | 2011_Marine | MD1101549
Original file (MD1101549.rtf) Auto-classification: Denied
ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20110607
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MARCORSEPMAN

Applicant’s Request:      Characterization change to:
         Narrative Reason change to: CONVENIENCE OF THE GOVERNMENT

Summary of Service
Prior Service:
Inactive:         USMCR (DEP)       20010821 - 20020728     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20020729     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20071105      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 11 D a y ( s )
Education Level:        AFQT: 61
MOS: 0311
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle , (Iraq), (Kuwait), , , -N

NJP:

- 20031219 :       Article (Wrongful use, possession, etc of a controlled substance - wrongful use of cocaine (2091 ng/ml) per N aval D rug L ab urinalysis test results dated 121612Dec 2003 )
         Art icle 92 ( Violation of lawful order or regulation - wrongfully c onsuming alcohol while under the legal age of 21)
         Awarded : , , Susp ended:

SCM:     CC:

SPCM:

- 20040511 :       Art icle ( Absence without leave , 3 specifications of unauthorized absence )
         Specification 1: Failure to go at the time prescribed to his a ppointed place of duty 20040211
         Specification 2: Failed to go at the time prescribed to his appointed place of duty on 20040218
         Specification 3: Unauthorized Absence - absented himself, without authority, from his unit on 20040220 and did remain so absent until surrendering himself to military authority on 20040310 (1 9 days )
         Art icle (Dereliction in the performance of his duties on 20040212)
         Article 107 (False official statement on 20040218)
         Article 112a ( Wrongful use, possession, etc of a controlled substance - wrongful use of marijuana on 20040217 , self admittance to military chain of command )
         Article 134 (Breaking restriction)
          Sentence as adjudged : BCD, RIR E-1, C onfinement 120 days (Pre-trial: 20040311-20040 0510 (61 days); Confinement 20040511 - 20040618 (38 days)
         C onvening Authority Action: The sentence is approved and, except for the B ad C onduct D ischarge, ordered executed.


Retention Warning Counseling : 2

- 20030807 :       For you admitted to consuming alcoholic beverages while posted as a sentinel during O peration Iraqi Freedom, in violation of A rticle 113, UCMJ ( M isbehavior of a sentinel or lookout).

- 20040105 :       For you were found to have violated the following article of the UCMJ at Battalion Non-Judicial Punishment: Article 112a , I llegal use of a controlled substance and Article 92 , Failure to obey an order or regulation .

Administrative Corrections to the Applicant’s DD 214

 The NDRB did note administrative error(s) on the original DD Form 214:

          “ GENERAL (UNDER HONORABLE CONDITIONS) ”
          “ (99) 20040311-20040618, (19) 20040220-20040310 ”
         
The NDRB will recommend to the Commandant of the Marine Corps that the DD 214 be corrected as appropriate.
Types of Documents Submitted/reviewed

 Related to Military Service:
         DD 214:            Service/ Medical Record:            Other Records:   
                                             Summarized Record of Trial
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 6203.4 , MISCELLANEOUS/GENERAL - Involuntary discharge - Appellate Review Action (no board) 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)(a), 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 .

D . 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 92, 112(a), 107, and 134.


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

Applicant’s Issues

 Nondecisional issues: The Applicant seeks an upgrade in the characterization of his service at discharge in order to facilitate access to Department of Veterans Affairs (VA) educational benefits.

Decisional issues : (1) The Applicant contends that drugs and alcohol greatly impaired his ability to serve, resulting in his misconduct of record that led to discharge , however, it advocated a need for treatment that he did not receive; as such, the characterization of his service at discharge was inequitable . (2) The Applicant contends that his misconduct of record was the result of stress from depression and anxiety related to Post - Traumatic Stress Disorder (PTSD) , which warrants consideration as extenuating and mitigating factors to his discharge and the characterization of service he received. (3) The Applicant contends that the characterization of his service at discharge was inequitable , because he was awarded the Combat Action Ribbon; he should have been offered treatment and rehabilitati on . (4) The Applicant contends his characterization of service at discharge was inequitable; his P roficiency and C onduct markings warrant an H onorable characterization of his service at discharge. (5) The Applicant contends his characterization of service at discharge was inequitable; the separation was based on numerous offense s , but many were from the Applicant being honest and self-admitting to misconduct. (6) T he Applicant believes his post-service conduct is worthy of consideration.

Decision

 Date: 20 1 2 030 8           Location: Washington D.C .        R epresentation :

By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall .
Discussion

 The NDRB reviewed the Applicant’s personal statement; the Applicant stated that he was suffering from PTSD related to combat service in Iraq. As such, in accordance with U.S. Code, Title 10, Section 1553 (d) (1), the board included a member who is a physician, clinical psychologist, or psychiatrist. Additionally, 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. This case review was delayed as the NDRB requested, on three separate occasions, copies of the Applicant’s in-service records , and any post-service , medical treatment records from the Department of Veterans Affairs; after three attempts with negative responses, the case was moved forward without a medical record being available for review. As such, the NDRB presumed regularity in governmental affairs.

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 Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Applicant entered military service at age 17 (with parental consent) on a four year enlistment with a guaranteed contract of Infantry Option. The Applicant’s enlistment record reflects entry into the military service with a waiver to enlistment and induction standards for pre-service illegal drug use (marijuana x3) . During the enlistment process, the Applicant acknowledged his complete understanding of the Marine Corps Policy Concerning the Illegal Use of Drugs - in writing - on 16 August 200 1 . The Applicant ’s service record further documents that he completed a combat deployment with an Infantry Battalion as an infantry rifleman in support of Operation IRAQI FREEDOM (OIF -I ). The military service record also documents that he received the Combat Action Ribbon for his actions while engaged in direct combat operations against enemy forces. The Applicant completed 1 year and 11 months of his four-year enlistment obligation before transfer to an appellate leave status, pending appellate review of his adjudged Bad Conduct Discharge .

The Applicant’s record of service documents two paragraph 6105 retention-counseling warnings and a non-judicial punishment (NJP) ( Dec 2003) for violation s of the Uniform Code of Military Justice (UCMJ): specifically, Article 92 ( Failure to obey order or regulation - underage drinking) and Article 112(a) (Wrongful use, possession, etc of a controlled substance ( cocaine ) - 2091 ng/ml per Naval Drug Lab testing ). Based on the violation of Article 112(a), processing for administrative separation, by service policy, was mandatory. The Applicant was notified - in writing - of the Command’s intent to process the Applicant for administrative separation for Misconduct (Drug Abuse) in accordance with paragraph 6210.5 of the Marine Corps Separation and Retirement Manual ( MARCORSEPMAN ) . The Applicant was advised that the least favorable characterization of his service at discharge was U nder O ther T han H onorable C onditions and that characterization was what the Command was recommending he be awarded. When notified of administrative separation processing using the procedure, the Applicant waived right s to consult with a qualified legal defense counsel, to submit a written statement for consideration by the Separation Authority, or to request an administrative hearing board be held in order to present his case for retention or characterization.

After review by the Staff Judge Advocate, the Separation Authority determined that the evidence of record was sufficient in law and fact to support the proposed discharge action. He reviewed the chain of command’s recommendations regarding characterization of service, to include a personal statement from the Applicant apologizing for his actions and seeking consideration concerning the characterization of his service. On 01 March 2004 , the Separation Authority approved the request that the Applicant be separated administratively wit h an Under Other Than Honorable Conditions characterization of his service for Misconduct (Drug Abuse) , pursuant to paragraph 6210.5 of the MARCORSEPMAN. He further directed that, upon his discharge, the Applicant receive an RE-4B re-entry code (not recommended for reenlistment, in - service drug abuse). However, during the administrative separation review and approval process, the Applicant continued to engage in misconduct of a discrediting nature. The misconduct included breaking restriction , absenting himself from his unit (and a result, was not present to be discharged , when approved) , admitting to illegal drug use and his continued underage consumption of alcohol , and presenting false official statements to his chain of command regarding his whereabouts and actions.

 In light of the continued misconduct ( while p ending administrative separation ) , the Command chose to refer the Applicant’s recent misconduct to a punitive trial by S pecial C ourt -M artial for the charges as specified in the preceding section of this document (86 x3, 92, 107, 112(a), 134) in lieu of executing the approved administrative discharge action. The Separation Authority concurred and withdrew his approval for administrative discharge. Upon return from his unauthorized absence of 19 days, the Applicant was placed in pre-trial confinement, pending trial by S pecial C ourt -M artial. A qualified legal defense counsel represented the Applicant throughout the trial by Special Court-Martial process. The Applicant opted to submit a Pre-Trial Agreement (PTA) in which he agreed to plead guilty to the charges , as specified and agreed upon , in trial by judge alone for consideration in sentencing confinement. Given the facts of the case, the trial judge awarded the Applicant a Bad Conduct Discharge, confinement for 120 days, and a reduction in pay grade to E-1. The terms of the PTA had no impact on the sentence as adjudged. Upon completion of his adjudged confinement, the Applicant was placed on voluntary leave, pending appellate review of his Bad Conduct Discharge ; as such, he w as service record transferred to the Navy and Marine Corps Appellate Leave Activity. Upon expiration of the Applicant’s required active duty service obligation, he was placed in a n involuntary appellate leave status . The Applicant’s case was submitted for review to the U.S. Navy - Marine Corps Court of Criminal Appeals with two assignments of error ; it was reviewed and the findings of guilty and only so much of the sentence as provides for 120 days confinement and reduction to pay grade E-1 were affirmed. The Bad Conduct Discharge was set aside due to lack of a Verbatim Record of Trial by Special Court - Martial. Subsequently, the Navy and Marine Corps Appellate Leave Activity ordered the Applicant be discharge d on 16 March 2007 . On 0 5 November 200 7 , the Applicant’s discharge action was completed ; he was discharged with a narrative reason for discharge of “ C ourt -M artial” and a General (Under Honorable Conditions) characterization of his service .

Non-decisional Issue - The Applicant seeks an upgrade to his discharge characterization of service in order to achieve eligibility for Department of Veterans Affa irs (VA) educational benefits . There is no requirement, or law, that grants re-characterization solely on the issue of facilitating access to VA benefits. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing educational opportunities or employment opportunities. Regulations limit the NDRB’s review solely to a determination of the propriety and the equity of a discharge. As such, this issue does not serve to provide a foundation upon whic h the NDRB can grant relief.

Decisional Issue 1 (Equity) - RELIEF NOT WARRANTED. The Applicant contends that drugs and alcohol greatly impaired his ability to serve, resulting in his misconduct of record that led to discharge ; however, it advocated a need for treatment that he did not receive . Despite a service member’s prior record of service, certain serious offenses warrant separation from the N aval S ervice to maintain good order and discipline - violation of Article 112a meets this standard. The Applicant acknowledged the U.S. Marine Corps Drug Policy, in writing, on 16 August 2001 as a function of his waiver process upon enlistment with an admitt ance of pre-service drug use. He was fully aware of the zero - tolerance policy for drug abuse and he acknowledged the consequences. Because of violati ng Article 112(a), the Applicant was command directed to attend a substance abuse screening in regard s to his alcohol and drug abuse . Appropriately credentialed substance abuse counselors evaluated the Applicant on 12 January 2004; they determined that the Applicant was alcohol abusive , with a single incident of in-service drug abuse . Moreover , the Applicant was recommended to attend a 30-day intensive - outpatient treatment program. The service record documents his attendance at this treatment program from 15 January to 17 February 2004. By service policy, violation of Article 112(a) requires mandatory processing for administrative separation, regardless of grade , time in service , or treatment program . This action usually results in an unfavorable characterization of service at discharge , at a minimum, or a punitive discharge and possible confinement , if adjud ged and awarded as part of a sentence by a S pecial or G eneral C ourt- M artial. The command did not pursue a punitive discharge after the Applicant’s first positive urinalysis for cocaine , but chose instead to seek the more lenient administrative discharge process. However, while being processed for administrative separation, the Applicant continued to engage in misconduct , to include the admi ssion to his chain of command that he had continued to use illegal drug s (marijuana) . This continued misconduct resulted in the command referring charges for punitive trial by S pecial C ourt -M artial. Th e deliberate and repetitive misconduct warranted the Bad Conduct Discharge as adjudicated by the S pecial C ourt -M artial and approved by the Convening Authority ; however, t he Applicant received a General (Under Honorable Conditions) characterization of service on legal appeal due to the loss of the verbatim record of trial .

An Honorable characterization of service is warranted when the quality of a member’s service generally meets the standard of acceptable conduct and performance for N aval personnel, or is otherwise so meritorious that any other characterization of service would be clearly inappropriate. A General (Under Honorable Conditions) discharge is warranted when the quality of the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service record. The NDRB determined that the Applicant’s contention is without merit, his discharge characterization of service is not inequitable, and he does not warrant an upgrade to Honorable conditions. Relief denied.

Decisional Issue 2 (Equity) - RELIEF NOT WARRANTED. The Applicant contends that his misconduct of record was resultant from diminished coping skills, anxiety, and depression as he was suffering from PTSD and attempting to self-medicate , and h e was not afforded the opportunity to be seen and treated for mental health issues. 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 NDRB requested the Applicant’s medical record s on three separate occasions ; the VA was unable to locate them. During separation proceedings, the Applicant waived his right to consult with counsel, to request a hearing before an a dministrative separation b oard, or to submit a rebuttal to the separation. If the Applicant felt there were mitigating or extenuating circumstances involved in the misconduct, such as PTSD , it was his obligation to identify those concerns during the discharge process . During an administrative separation board, he would have had the opportunity to mount a defense against the charges against him and present evidence of PTSD and its effects on him - he did not . A ccordingly, after an in - depth review of the Applicant’s documentation, his service record, and discharge physical, the contention of PTSD could not be established as having existed in-service, prior to the misconduct of record. After a careful review of the Applicant’s combat deployment history, in-service alcohol and drug treatment issues, and the timing and repetitive nature of the misconduct itself, the NDRB determined that the Applicant’s contention of PTSD and associated symptoms were not mitigating and contributory factors in his total misconduct. The Applicant failed a command urinalysis due to his illegal use of cocaine ; t his, in itself, warranted separation with an Under Other Than Honorable Conditions characterization of service at discharge, regardless of his time in service or combat service . T he Applicant contends that the command climate was not amenable to seeking assistance for PTSD or combat stress through the chain of command. This concern could have been addressed during the medical officer ’s evaluation , the substance abuse counselor ’s screening evaluation , or during the intensive outpatient treatment program - which included psychiatric screening and counseling - had the applicant chosen to seek that help . The record reflects that he did not. The Applicant opted instead to disregard a formal counseling warning about his misconduct up to this point and chose to engage in continued misconduct, includ ing 19 days of unauthorized absence, breaking restriction, violation of lawful orders, and continued alcohol abuse and illegal drug use. The NDRB determined that depression and anxiety related to PTSD were not factors related to the final discharge action and that a change in the characterization of service at discharge is not warra nted. Relief denied.

Decisional Issue 3 (Equity) - RELIEF NOT WARRANTED. The Applicant contends that the characterization of his service at discharge was inequitable , because he was awarded the Combat Action Ribbon , and he should have been offered treatment and rehabilitati on . The record of service documents that the Applicant did receive the C ombat A ction R ibbon for his services while in combat. However, d espite a service member’s prior record of service, in combat or garrison, certain serious offenses warrant separation to maintain good order and discipline - violation of Article 112a meets this standard. The service record further documents that the Applicant was screened and evaluated by appropriately credentialed and licensed substance abuse counselors and was afforded a substance abuse treatment program (screened 12 Jan 2004, intensive outpatient treatment program 15 Jan to 17 Feb 2004). The NDRB determined the Applicant’s issue to be without merit; he received treatment for his alcohol and substance abuse and was aware of the service policy regarding illegal drug use (signed policy dated 8/16/2001). Accordingl y, no change is warranted.

Decisional Issue 4 (Equity) - RELIEF NOT WARRANTED. The Applicant contends his P roficiency and C onduct markings warrant an H onorable characterization of his service at discharge. An Honorable characterization of service is the highest quality of characterization and is appropriate when the quality of the Marine’s service has met the standards of accepted conduct and performance of duty for military personnel. Paragraph 1004 of the MARCORSEPMAN specifies that upon expiration of an active duty service enlistment, the characterization of service received will be H onorable for those Marines who have average P roficiency marks of 3.0 or higher and average C onduct marks of 4.0 or higher. A review of the Applicant’s Proficiency and Conduct marks document the misconduct of record during his service; his overall in - service average P roficiency marking was 3.5 and his average C onduct marking was 3.5 (based on 5 evaluations). When involuntarily discharged early due to misconduct, t he 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 are given to the member’s length of service, grade, aptitude, and physical and mental condition. In accordance with the MARCORSEPMAN, w hen a Marine is separated for misconduct, the characterization of service normally shall be U nder O ther T han H onorable C onditions. Given the Applicant’s P roficiency and C onduct markings in service, coupled with the repetitive and deliberate misconduct as document ed in the service record , the NDRB determined that the Applicant did not warrant an Honorable characterization of service at discharge. Relief denied .

Decisional Issue 5 (Equity) - RELIEF NOT WARRANTED. T he Applicant contends his separation was based on numerous offense s , but many were from the Applicant being honest and self-admitting to misconduct. The NDRB recognizes that serving in the military is challenging. Most service members, however, serve honorably and therefore earn their H onorable discharges. In fairness to those service members, commanders and separation authorities are tasked to ensure that undeserving Marine s receive no higher characterization than is due. Repetitive and deliberate misconduct is not an Honorable characterization of service , regardless of the Applicant ’ s willingness to come forward and admit his misconduct . There is no evidence in the record, nor did the Applicant provide any documentation, to indicate that his voluntary disclosures of continued misconduct w e re not true. Moreover, the admission of his guilt regarding the offenses established that, by a preponderance of the evidence, the misconduct had occurred. The NDRB determined this issue to be without merit and that the discharge characterization of service was equitable . Relief denied.

Decisional Issue 6 (Equity) - RELIEF NOT WARRANTED. T he Applicant believes his post-service conduct is worthy of consideration . The NDRB considers post-service conduct in order to determine if the misconduct committed during active duty was indicative of the Applicant's character or was an aberration. However, there is no law or regulation, that provides an unfavorable discharge be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question. The Applicant provided a personal statement , multiple certificates of training since leaving the service, character reference letters, and a certificate of completion o f a drug and alcohol outpatient-treatment- program as evidence of his post-service accomplishments . The NDRB determined that the Applicant ’ s documented post - service conduct , while a positive and earnest step forward, did not overcome the misconduct of record; as such, no relief based on post - service conduct is warranted. Relief denied.

NDRB Board Issue (Propriety) - PARTIAL RELIEF WARRANTED. The Applicant’s trial by S pecial C ourt -M artial was submitted for review to the U.S. Navy - Marine Corps Court of Criminal Appeals with two assignments of error; it was reviewed and the findings of guilty and only so much of the sentence as provides for 120 days confinement and reduction to pay grade E-1 were affirmed. The Bad Conduct Discharge was set aside due to lack of a Verbatim Record of Trial by Special Court - Martial. Subsequently, the Applicant was discharged with a narrative reason for discharge of “ C ourt -M artial” and a General (Under Honorable Conditions) characterization of his service pursuant to the authority of paragraph 1105 of the MARCORSEPMAN. The NDRB determined that this action was improper. The Government conceded error in that the convening authority should have never approved the Bad Conduct Discharge, as adjudged, without access to a review of the Verbatim Record of Trial by Court - Martial. On review, the Appellate Court concurred and ordered that the adjudged Bad Conduct Discharge be set aside . As such, the authority for discharge pursuant to a court - martial no longer remained .

However, i n accordance with paragraph 6204.4 ( a ) of the MARCORSEPMAN , a member may be separated if placed on appellate leave and the punitive discharge is set aside, suspended, remitted, or disapproved during the review process. In th ese case s , separation processing must be based upon an applicable provision of chapter 6 of the MARCORSEPMAN and the process may proceed without the member being present. The member, however, must be notified of the separation processing prior to beginning appellate leave, or be afforded his administrative rights under paragraph 6303 or 6304 , as appropriate, and either waives those rights or fails to respond within 30 days of receipt of notification of separation proceedings. In the Applicant ’ s specific case, the NDRB determined that he should have been notified of administrative separation pursuant to paragraph 6210.5 (Dru g Abuse) and paragraph 6210.6 (Serious Offense) of the MARCORSEPMAN via certified US Mail . Based on the evidence of record, he was not. As such, the Applicant was separated improperly , receiving a DD Form 214 that erroneously specif ied “ C ourt -M artial ” as the authority for the discharge action and the narrative reason for discharge.

In cases where no other reason for separation as set forth in the MARCORSEPMAN is appropriate, but where separation of a member is considered to be in the best interest of the service, the Secretary of the Navy has the authority to direct the separation of any member prior to the expiration of their term of service pursuant to “Secretarial Authority. ” The Commanding Officer determined the Applicant had no potential for further Naval S ervice based on his misconduct of record and the military judge concurred by adjudging a Bad Conduct Discharge - this is clearly documented in the service record. Due to the appellate court setting aside the Bad Conduct Discharge after the Applicant had completed his required active duty service obligation , and being that there is no other narrative reason for separation that was properly notified or processed, the NDRB determined the reason for the Applicant’s discharge shall ch ange to Secretarial Authority.

After reviewing the Applicant’s issue, the supporting documentation, and the evidence of record contained in the service record and record of trial by S pecial C ourt -M artial , the NDRB discerned an impropriety in the narrative reason and authority for discharge , but no inequity in the characterization of service . As such, the NDRB determined that the Applicant’s misconduct of record was conduct that did constitute a significant departure from the conduct expected of members of the Naval Service . B y a vote of 5-0, the NDRB determined that the authority and narrative reason for discharge shall change to Secretarial Authority, however, the characterization of service shall remain General ( Under Honorable Conditions) . Partial relief granted.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, the record of trial by Special Court-Martial, and the discharge process, the NDRB found that the discharge was improper. The awarded characterization of service shall GENERAL (UNDER HONORABLE CONDITIONS); however, the narrative reason for discharge shall change to SECRETARIAL AUTHORITY. 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, specifically the paragraphs titled Additional Reviews and Post-Service Conduct .


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), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 .
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

Similar Decisions

  • USMC | DRB | 2011_Marine | MD1101141

    Original file (MD1101141.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENT Applicant’s Issues 1. By a vote of the Narrative Reason shall .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 Board presumes regularity in the conduct of Government affairs unless there is substantial...

  • USMC | DRB | 2010_Marine | MD1001752

    Original file (MD1001752.rtf) Auto-classification: Denied

    Accordingly, relief is denied Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, the verbatim transcript record of trial by Special Court-Martial, and the discharge process, the NDRB determined that Therefore, the awarded characterization of service shall BAD CONDUCT DISCHARGE, andthe narrative reason for separation shall remain . ” Additional Reviews : After a document review has been conducted, former members are...

  • USMC | DRB | 2011_Marine | MD1100247

    Original file (MD1100247.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENT Applicant’s Issues 1. By a vote of the Narrative Reason shall .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 Board presumes regularity in the conduct of governmental affairs unless there is...

  • NAVY | DRB | 2010_Navy | ND1001502

    Original file (ND1001502.rtf) Auto-classification: Denied

    The Convening Authority took action on the adjudged sentence on 15 September 2003, specifying, “ Except for the Bad Conduct Discharge, the sentence is approved and will be executed .” Based on a review of the record of trial and all supporting documentation, the NDRB determined that the Convening Authority intended to state that “ The Sentence is approved, and except for the Bad Conduct Discharge, will be executed .” Not noticing the error in the Convening Authority’s specified actions, the...

  • USMC | DRB | 2011_Marine | MD1100684

    Original file (MD1100684.rtf) Auto-classification: Denied

    Types of Documents Submitted/reviewedRelated 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/ToCongress member: Pertinent Regulation/Law A. Paragraph 1105, DISCHARGE...

  • USMC | DRB | 2011_Marine | MD1100244

    Original file (MD1100244.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues Issue 1: The Applicant seeks an upgrade in the characterization of his service at discharge in order to facilitate access tomedical disability benefits from the Department of Veterans Affairs.Issue 2: The Applicant contends that his misconduct of record was the result of stress from depression and anxiety related to personal relationship problems, which warrants consideration as...

  • NAVY | DRB | 2011_Navy | ND1100008

    Original file (ND1100008.rtf) Auto-classification: Denied

    Types of Documents Submitted/reviewedRelated 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/ToCongress member: DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD...

  • USMC | DRB | 2011_Marine | MD1100206

    Original file (MD1100206.rtf) Auto-classification: Denied

    The Applicant’s enlistment record reflects his entry into military service with a waiver to enlistment and induction standards for pre-service illegal drug use (marijuana) and for exceeding the Marine Corps height/weight standards. Issue 2: (Decisional) (Clemency/Equity)CLEMENCY NOT WARRANTED. ” 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...

  • USMC | DRB | 2010_Marine | MD1002044

    Original file (MD1002044.rtf) Auto-classification: Denied

    The Applicant’s service record documents that he completed the adjudicated period of confinement as awarded by the Special Court-Martial sentence. On 14 May 1996, the Applicant submitted a request for clemency to the Convening Authority; on 19 August, the Convening Authority acted on the request for clemency and reduced the sentence of confinement for six years to a period of four years. Having conducted a detailed review of both the records of trial by Special and by General Court-Martial...

  • USMC | DRB | 2011_Marine | MD1100204

    Original file (MD1100204.rtf) Auto-classification: 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 and the narrative reason for separation shall .The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of discharge. ” Additional Reviews : After a document review has been conducted, former members are eligible for a...