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USMC | DRB | 2012_Marine | MD1200355
Original file (MD1200355.rtf) Auto-classification: Denied
ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20111128
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)       20021214 - 20030122     Active:   20030123 - 20061005 HON

Period of Service Under Review:
Date of Current Enlistment: 20061006     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20100915      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 09 D a y ( s )
Education Level:        AFQT: 24
MOS: 0311
Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle , (2) , , , , , (2) , , , LoA (6)
Periods of UA :

NJP:     SCM:              CC:

SPCM:
- 20100223 :       Art icle ( Failure to obey lawful order or regulation - Failed to obey a lawful general order (Depot Order P1513.6B , by wrongfully failing to report to a Company Officer allegations of Drill Instructor Misconduct - that a Drill Instructor had broken the thumb of a recruit)
         Art icle (Assault , consummated by battery - did kick a recruit in the back of the head , thereby intentionally inflict ing grievous bodily harm upon him, to wit: a deep cut to the chin )
         Sentence : , CONF 4 months (20100223-20100525, 91 days) , ,
         Convening Authority Action: The sentence is approved, and except for the Bad Conduct Discharge, is ordered executed. As required, the case if forwarded for appellate review of the Bad Conduct Discharge

Retention Warning Counseling :
- 20100412 :       For misconduct as a Drill Instructor, my additional MOS OF 0911 ha s been voided effective 20100408 due to “Relief for C ause” for personal misconduct.

Types of Documents Submitted/reviewed
Related to Military Service:
         DD 214:            Service/ Medical Record:            Other Records:   
                                             Verbatim Record of Trial by SPCM
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 :        

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

Applicant’s Issues

 Decisional issues : The Applicant contends his characterization of service at discharge was inequitable; his misconduct was an isolated incident in what was an otherwise outstanding military career and was not intended to cause harm but to facilitate a recruit’s successful graduation from Recruit Training .

Decision

 Date: 20 1 2 0202   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 and documentation ; the Applicant ’s documentation included an in-service diagnosis that he was suffering from Post - Traumatic Stress Disorder (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 ac hieve an expedited resolution.

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. With respect to a discharge adjudged by a court-martial case, 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. In response to the Applicant ’ s clemency request, relevant and material facts, as stated in a court-martial, are presumed by the NDRB, to be established facts. As such, the Applicant ’ s case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency. Matters of propriety were addressed through the Courts of Appeal as a function of the Applicant’s legal rights .

The Applicant entered military service at age 19 on a four year enlistment with a guaranteed contract of Infantry Option. The Applicant was serving on his second enlistment with the Marine Corps , having completed honorably, one four year enlistment contract that ended on 05 October 2005. Moreover, th e Applicant ’s service record documents a combat deployment to Ar-Ramadi, Iraq (Sept 2007 - April 2008) - which included direct combat operations with an Infantry Battalion - and a MEU deployment to the North Arabian Gulf, both in support of Operation IRAQI FREEDOM. The military service record further documents the awarding of the Navy and Marine Corps Achievement Medal for his personal actions while conducting counter-insurgency operations in the Al-Anbar prov ince of Iraq.

The Applicant’s record of service documents one paragraph 6105 retention-counseling warning . The Applicant satisfactorily completed two years and ten months of service in his current enlistment period before his removal from D rill Instructor Duty and referral of charges against him for trial by General Court - Mart i al ; the remainder of his enlistment period was pending trial by court - martial, in confinement, or on appellate leave, pending review of his punitive discharge (BCD). The service record does not document any nonjudicial proceedings during his current enlistment period; however, the service record does contain a conviction at trial by S pecial C ourt -M artial for violation of Article 92 ( F ailure to obey an order or regulation) and Article 1 28 (Assault). A qualified legal defense counsel represented the Applicant throughout his trial by Special Court-Martial. In accordance with a signed Pre- T rial Agreement (PTA), the Applicant agreed to plead guilty to charge s , as agreed upon, before a M ilitary Judge alone in trial by Special Court - Martial in exchange for the withdraw al of charge s from trial by General Court - Martial. The Applicant further agreed to provide a written stipulation of the facts surrounding the misconduct. Given the facts of the case and the testimony of record , the Military Judge found the Applicant guilty of the charge, as specified, and adjudged a Bad Conduct D ischarge. The Convening Authority approved the sentence, as adjudged, and t he case was submitted for review to the U.S. Navy–Marine Corps Court of Criminal Appeals without assignment of error; it was reviewed and the decision was affirmed. As such, the case was returned to the Navy Marine Corps Appellate Leave Activity to order the Bad Conduct Discharge executed. Accordingly, the Applicant was discharged on 15 September 2010.



Decisional Issue (Clemency/Equity) CLEMENCY NOT WARRANTED. The Applicant contends his characterization of service at discharge was inequitable; his misconduct was an isolated incident in what was an otherwise outstanding military career and was not intended to cause harm but to facilitate a recruit’s successful graduation from Recruit Training . Despite a service member’s prior record of service or combat service , certain serious offenses, even though isolated, warrant separation from the Naval Service in order to maintain good order and discipline. Violation of Article s 92 and 128 are serious offense s under the UCMJ , warranting consideration for separation, regardless of grade, combat experience, or time in service. This action may result in an unfavorable characterization of service at discharge or, at a maximum, a punitive discharge with the possibility of confinement, if adjudicated and awarded as part of a sentence by a S pecial or G eneral C ourt- M artial. Due to the seriousness of the alleged charges , the Applicant’s command opted to pursue trial by General C ourt- M artial. In accordance with a signed PTA, t he charges were withdrawn from trial by General Court - Martial and prosecuted in the lesser fo rum of a trial by Special Court- Martial. The Applicant was represented by trial counsel throughout and pled guilty before a M ilitary J udge alone .

In review of the Applicant’s request for clemency, it was determined that the Applicant was a combat veteran who was diagnosed with PTSD - while confined pursuant to his S pecial C ourt -M artial sentence. Moreover, the Applicant was also diagnosed with Alcohol Dependence (with physiological dependence) and Cannabis Dependence (with physiological dependence), both in early , full remission in a controlled environment (confinement) . The NDRB r eviewed the Applicant’s medical and service record s ; the contention of PTSD was established as existing in-service . However, there was no documentation of the manifestation of symptoms prior to the misconduct of record. After a careful review of the Applicant’s combat deployment history, the in-service alcohol and drug dependence, and diagnosed PTSD, coupled with the testimony appended in the verbatim record of trial by S pecial C ourt -M artial , the NDRB discerned that the Applicant’s PTSD and associated symptoms , though documented, were not mitigating or c ontributory factors in the specified misconduct .

The NDRB considered the Applicant’s request for a change to an Honorable discharge to be inappropriate due to the deliberate nature of the in-service misconduct. T he NDRB determined that the Applicant’s conduct, which forms the primary basis for determining the character of his service, reflected conduct involving one or more acts or omissions that con stitute d a significant departure from the conduct expected of members of the Naval Service and warranted punitive discharge . After a thorough review of the Applicant’s record, the unique issue submitted in support of this case, the standards of discipline of the service, and the deliberate and egregious nature of the misconduct , the NDRB determined , b y a vote 5-0, that clemency was not warranted . As such, the characterization of service at discharge shall not change.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, and medical record entries, the verbatim record of trial by Special Court-Martial, and the discharge process, the NDRB determined that clemency was not warranted. Therefore, the awarded characterization of service shall remain BAD CONDUCT DISCHARGE and the narrative reason for separation shall remain . 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 .

Pertinent Regulation/Law

 A. Paragraph 1105, DISCHARGE ADJUDGED BY SENTENCE OF 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)(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 , and Part V, Para 503, Equity .


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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