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USMC | DRB | 2012_Marine | MD1200608
Original file (MD1200608.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20120126
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)       20020209 - 20020407     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20020408     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20050103      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 02 D a y ( s )
Education Level:        AFQT: 81
MOS: 0311
Proficiency/Conduct M arks (# of occasions): /   Fitness R eports:

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

Periods of UA :

NJP:    SCM:              CC:     Retention Warning Counseling :

SPCM:
- 20040127 :       Art icle (General A rticle - break restriction)
         Art icle (Wrongful use, possession, etc., of controlled substance - marijuana)
         Sentence : CONF 60 days (Pre-trial 20031203-20040126, 53 days)

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 502, Propriety and Para 503, Equity .


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

Applicant’s Issues

 1 .       The Applicant believes his post-service conduct is worthy of consideration for clemency.
2 .       The Applicant contends his P ost- T raumatic S tress D isorder (PTSD) was a mitigating factor in his misconduct.

Decision

Date: 20 1 2 0510            Location: Washington D.C .         R epresentation : DVA

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

 As a result of the Applicant’s claim of PTSD, in accordance with U.S. Code, Title 10, Section 1553 (d)(1), the Naval Discharge Review Board included a member who is a physician, clinical psychologist, or psychiatrist. 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. T he Applicant stated that he was diagnosed with PTSD related to his combat service in Iraq. The Applicant’s service record documents completion of a deployment in the Nasiriyah Province of Iraq from February to May 200 3 , conducting combat operations in support of Operation IRAQI FREEDOM.
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. 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 stated in a court-martial specification are presumed by the NDRB to be established facts. 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’s record of service included Special Court-Martial for violations of the UCMJ: Article 112a ( Wrongful use, possession, etc., of controlled substance - marijuana ) and Article 134 ( General A rticle - break restriction ) . The Applicant did not have a pre-service waiver for illegal drug use prior to entering the Marine Corps but acknowledged complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 07 February 2002. The Applicant’s service record documents a punitive conviction and punishment, as adjudged by a Special Court-Martial, on 27 January 2004. A qualified legal defense counsel represented the Applicant throughout the trial by Special Court-Martial process. Given the facts of the case, the Special Court-Martial awarded the Applicant a Bad Conduct Discharge and confinement for a period of 60 days. The Applicant completed 53 days of pre-trial confinement. He ple d guilty and was found guilty before a Military Judge alone . The case was submitted for review to the U.S. Navy-Marine Corps Court of Criminal Appeals without assignments of error; it was reviewed and the findings were affirmed. Subsequently, the Navy Marine Corps Appellate Leave Activity ordered the Bad Conduct Discharge executed. The Applicant’s final Bad Conduct Discharge was executed on 3 January 200 5 .

: (Decisional) ( ) RELIEF NOT WARRANTED. The Applicant believes his post-service conduct is worthy of consideration for clemency. The NDRB considers 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. The Applicant provided a personal statement and five character references , including three letters from his two different clinical psychologists who have treated the Applicant for PTSD. The Clinical Psychologist s confirm ed in their letters that the Applicant has made tremendous progress in h is PTSD treatment, is living a drug and alcohol free life, and is enrolled at the University of Louisville. The Applicant could have provided additional documentation as detailed in the Post-Service Conduct paragraph in the Addendum , however, completion of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case by case basis to determine if post-service conduct establishes that the in-service misconduct was an aberration. To warrant an upgrade, the Applicant’s post-service efforts need to be more encompassing. The Board determined th e characterization of service received was appropriate considering the UCMJ violations. Relief denied.

: (Decisional) ( ) PARTIAL RELIEF WARRANTED. The Applicant contends his PTSD was a mitigating factor in his misconduct. The NDRB requested and receive d the Applicant’s in-service medical record and treatment records (post-service) from the Department of Veterans Affairs. The available record s reflect the Applicant was diagnosed with PTSD post-service in 2008 by the Department of Veterans A ffairs . As of 24 May 2010, the Applicant is receiving 10% disability compensation from the Department of Veterans Affairs for PTSD in partial remission. The Applicant also provided letter s from his clinical psychologist validating his post-service PTSD diagnosis and treatment progress to date. The Applicant’s service record documents a combat deployment to Iraq from 17 February to 08 May 2003 . He subsequently failed two command urinalysis tests following his return from deployment and was found guilty at Special Court-Martial. After a careful review of the Applicant’s combat deployment, pre-combat behavior, statements of the chain of command regarding the Applicant’s multiple uses of illegal substances, the statements of his fellow Marines, and his personal statement to the NDRB, the NDRB determined the Applicant’s P TSD did mitigate his in-service misconduct. By a majority vote, the NDRB determined that the characterization of the discharge shall change to Under Other Than Honorable Conditions, but that the narrative reason for separation shall remain as issued. Full relief to Honorable was not granted due to the serious and repetitive nature of the misconduct. C lemency warranted.

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 the discharge was proper and equitable at the time of discharge. However, based on the UCMJ violation involved the NDRB determined the sentence awarded the Applicant at his court-martial was inconsistent with the characterization of discharge given others in similar circumstances . Therefore, the awarded characterization of service shall 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 for additional information.


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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