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USMC | DRB | 2012_Marine | MD1200361
Original file (MD1200361.rtf) Auto-classification: Denied
ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20111122
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)       20041118 - 20041205     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20041206     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20080226      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 27 D a y ( s )
Education Level:        AFQT: 63
MOS: 3531
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

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

NJP:

- 20051012 :       Article (Disrespectful in language toward a Noncommissioned Officer)
          Article (Failed to obey a lawful order issued by Co mmanding Officer - drinking alcohol under the legal age limit )
         Awarded : Susp ended:

- 20061116 :       Article ( Absence without leave; Unauthorized absence in that, on or about 20061014 , without proper authority, absent ed himself from his unit and remained so absent until 20061114 (31 days) - absence terminated by surrendered to military authority )
         Awarded : Susp ended: Vacated suspension on 20061120 due to
continued misconduct
SCM:     CC:

SPCM:

- 20070724 :       Art icle ( Absence without leave; Unauthorized absence - on or about 20061119 , without proper authority, absented himself from his unit and remained so absent until 20070522 ( 184 days ) ; absence terminated through apprehension by federal law enforcement authorities )
         Art icle (Wrongfully and falsely alter his military ID card)
         Sentence : , , C onfinement for 75 days (Pre-trial confinement 20070605 - 20070724 ( 49 days) )
         Convening Authority Action : The sentence is approved, and except for the Bad Conduct Discharge, is ordered executed, but the execution of that part of the sentence extending to confinement in excess of 60 days (per pre-trial agreement) is suspended for a period of 18 months, and , unless sooner vacated, will be remitted without further action.


Retention Warning Counseling :

- 20050812 :       For your actions of irresponsibility with a knife on the night of 20050730. You were under the influence of alcohol, and cut your arm.

- 20051012 :       For your NJP for violation of the UCMJ, specifically Article(s) 91, Insubordinate Conduct toward a Non-Commissioned Officer; Article 92, Failure to obey a lawful order.

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 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 , Part V, Para 503, Equity .

D. Code of Federal Regulations - Title 38: Pensions, Bonuses, and Veterans' Relief , Section 3.12, section (c), sub paragraph 6 .



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

Applicant’s Issues

 Nond ecisional issues: (1) The Applicant contends that his defense counsel failed to present mitigating and extenuating circumstances regarding his diagnosis of P ost-Traumatic Stress Disorder (P TSD ), a diagnosis that he received while confined in the Brig under pre-trial confinement order . (2) The Applicant seeks VA benefits.

Decisional issues : (1) The Applicant contends his misconduct was an isolated incident in what was an otherwise outstanding military career. (2) The Applicant contends that his misconduct of record was the result of undiagnosed PTSD and warrants consideration as an extenuating and mitigating factor to his discharge and the characterization of service he received.

Decision

 Date: 20 1 2 0308            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 diagnosed with PTSD related to his combat service in Iraq. The Applicant ’s service record documents complet ion of a deployment in the Al-Anbar Province of Iraq from February to September 2006, conducting combat service support operations in support of Operation IRAQI FREEDOM (OIF). 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.

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, 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 recognized 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.

The Applicant entered military service at age 18 on a four - year enlistment agreement with a guaranteed Ground Option contract , ultimately receiving training as a Motor Transportation Driver . The Applicant’s enlistment record reflects his entry into military service with waivers to enlistment and induction standards for pre-service illegal drug use and for exceeding the Marine Corps height/weight standards. During the enlistment process, the Applicant acknowledged his complete understanding of the Marine Corps Policy Concerning the Illegal Use of Drugs - in writing - on 17 November 2004. The Applicant completed one year and 10 months of acceptable service before absenting himself from his command and his four -year enlistment obligation.

The Applicant ’s service record documents complet ion of a deployment in the Al-Anbar Province of Iraq from February to September 2006, conducting combat service support operations in support of Operation IRAQI FREEDOM (OIF). The military service record further documents award ing of the Combat Action Ribbon for personal actions while engaged in combat operations against enemy f orces . However, the Applicant’s service record also reflects having received two retention-counseling warnings in accordance with paragraph 6105 of the Marine Corps Separation and Retirement Manual (MARCORSEPMAN). Moreover, the Applicant also received t wo nonjudicial punishments (NJPs) for violations of the Uniform Code of Military Justice (UCMJ): Article 91 (Insubordinate conduct to a noncommissioned officer by disrespectful language); Article 92 (Failure to obey order or regulation ); and Article 86 ( Absence without leave, U nauthorized absence, without authority for 31 days - terminated by surrender).

Additionally, the Applicant’s record of service documents further disciplinary action through trial by Special Court - Martial for violation of Article 86 of the UCMJ (Absent without leave - unauthorized absence from his unit for 1 84 days - terminated by apprehension by Federal Marshals’ ). A qualified legal defense counsel represented the Applicant throughout the trial by Special Court-Martial process. In accordance with a signed pre-trial agreement, the Applicant agreed to request trial by judge alone and pled guilty to the charge, as specified, in exchange for a sentence limitation regarding adjudged confinement. Given the facts of the case, the military trial judge awarded the Applicant a Bad Conduct Discharge and confinement for a period of 75 days. The Applicant served 49 days of the sentence before being released from confinement due to the sentence limitations contained within the pre-trial agreement (no more than 60 days) plus credit awarded for good time. The Convening Authority took final action on the case and upheld the sentence, as adjudged . T he case was submitted for review without any assignment of error to the U.S. Navy - Marine Corps Court of Criminal Appeals; it was reviewed and the findings of the lower court were affirmed on 1 3 December 200 7 . Subsequently, the Navy Marine Corps Appellate Leave Activity ordered the Bad Conduct Discharge executed and the Applicant was discharged from the Armed Services with a Bad Conduct Discharge.

Nondecisional Issue: The Applicant seeks clemency contending that his defense counsel failed to present mitigating and extenuating circumstances regarding his diagnosis of PTSD , a diagnosis that he received while confined in the Brig pursuant to a pre-trial confinement order . In the cas e of a p unitive d ischarge, regulations specifically limit the NDRB’s review solely to a determination of clemency based on matters regarding the equity of a discharge. Matters related to propriety (the conduct of a punitive court martial - S pecial or G eneral C ourt -M artial) are address ed through exercising an A pplicant’s right to a legal appeal process. In the Applicant’s specific case, the verbatim record of trial was forwarded to the United States Navy-Marine Corps Court of Criminal Appeals for review due to the awarding of a punitive discharge (BCD). A panel of three military appeals judges reviewed the verbatim record of trial, affirming the actions and findings of the lower court. As such, this issue does not serve to provide a foundation upon which the NDRB can grant relief . However, the Applicant’s contention regarding the diagnosis of PTSD will be addressed below under the pertinent standard of equ ity in relation to clemency.

Also, the Applicant seeks VA 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.

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. The Applicant also contends that his misconduct of record was the result of undiagnosed PTSD and warrants consideration as an extenuating and mitigating factor to his discharge and the characterization of service he received. The NDRB conducted a thorough review of the Applicant’s discharge under the pertinent standards of equity to determine if any factors in this particular case merited clemency. In review of punitive discharges, the NDRB is restricted to awarding clemency based on standards of equity only - matters of propriety are reviewed through the established mandatory appeal process in the military courts of appeal.

Despite a servicemember’s prior record of service, certain serious offenses warrant separation from the Marine Corps in order to maintain the good order and discipline of the service; violation of Article 86 (in excess of 30 days) and Article 92 are such offense s . A ctions such as these usually result in an unfavorable characterization of service at discharge or, at a maximum, a punitive discharge, and possible confinement if adjudicated and awarded as part of a sentence by a S pecial or G eneral C ourt- M artial. Additionally, t he NDRB recognizes that many of our service members are young at t he time they enlist for service, but most still manage to serve honorably. While some members may be less mature than others, the NDRB does not view a member’s claim of immaturity to be a mitigating factor or a sufficient reason for misconduct. In the Applicant’s case, the command originally opted to pursue the more lenient nonjudicial punishment with retention in order to correct the Applicant’s misconduct and to afford him a change to take corrective action and complete his service obligation honorably. The Applicant, not being discharged at this point, chose to again absent himself from his assigned unit for a period of 1 84 days. During this period of unauthorized absence, the Applicant was dropped from his unit’s roles after 30 days of continued absence and was declared a Deserter; a DD Form-553 (Deserter/Absentee Wanted by the Armed Forces) was issued to Federal, State, and local law enforcement agencies seeking his apprehension and return to military custody. Ultimately, t he Applicant was apprehended by the U.S. Marshals Service and was returned to military custody. Upon the Applicant’s return to military authority , he was ordered to pre-trial confinement due to risk of flight , pending trial by S pecial C ourt -M artial. The referral of charges to trial by S pecial C ourt -M artial was proper, was within the Command’s authority, and was consistent with service norms for a period of absence this large.

The Applicant contends that his misconduct of record was the result of undiagnosed PTSD and warrants consideration as an extenuating and mitigating factor to his discharge and the characterization of service he received. The Applicant further contends that he was diagnosed with PTSD while confined in the Camp Pendleton Brig. 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 , but the VA was unable to locate them. The Applicant was unable to provide any treatment records regarding an in-service diagnosis of PTSD, but he did provide a mental health intake exam that was conducted by the F ederal prison system when he was incarcerated (post - service). This evaluation does provide a clinical diagnosis of PTSD , however, it does not differentiate if the PTSD is a result of the Applicant’s combat service or a result of his multiple documented childhood traumas. A fter an in - depth review of the Applicant’s statement and documentation, his service record, and the verbatim record of trial by Special Court - Martial, the NDRB determined that the contention of PTSD was established as existing in-service . However, by a vote of 5-0, the NDRB determined the Applicant’s PTSD and associated symptoms were not mitigating and contributory factors to his misconduct of record .

A period of unauthorized absence as lengthy as the Applicant’s equates to serious misconduct . In the Applicant ’ s case, t he verbatim record of trial by S pecial C ourt -M artial documents the m ilitary j udge ’ s effort s to determine if PTSD mitigated his misconduct. T he military judge heard the Applicant’s contentions regarding PTSD, personality disorders, the Applicant’s pre-service emotional trauma, and his combat service. He also considered the Applicant’s testimony of record attesting that he knowingly absented himself from his unit in Okinawa , Japan, without authority, because he “ no longer wanted to abide by the rules, sir.” T he Applicant’s misconduct clearly documents knowing, willful , and persistent misconduct related to a general failure to conform to military rules and regulations ; it is clearly evidenced by his extensive unauthorized absence s - with a demonstrated intent to remain absent and avoid his military duties. Due to the Applicant’s refusal to conform to the expected conduct of a United States Marine after two previous administrative punishment s , coupled with the need to maintain good order and discipline of the service, the military judge determined that retention and rehabilitation was not warranted . As such, he awarded a punitive Bad Conduct Discharge. After reviewing the Applicant’s issues, the supporting documentation, and the evidence of record contained in the verbatim record of trial, the NDRB determined that the Applicant’s misconduct of record was conduct involving one or more acts or omission that constituted a significant departure from the conduct expected of members of the Naval Service. The misconduct of record warranted the awarding of a Bad Conduct Discharge. The NDRB discerned no inequity in the characterization of service and determined that clemency was not warranted. Accordingly, by a vote of 5-0 , the NDRB determined that the characterization of service and narrative reason for d ischarge shall not change. Clemency not warranted.

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 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 .


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 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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