ex-, USMC

Current Discharge and Applicant’s Request

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

Summary of Service

Prior Service:
Inactive:        USMCR (DEP)      20060125 - 20060131     Active: 

Period of Service Under Review:
Date of Current Enlistment: 20060201    Age at Enlistment:
Period of Enlistment: Years Months
Date of Discharge: 20091006     Highest Rank:
Length of Service: Year(s) Month(s) 06 Day(s)
Education Level:        AFQT: 75
MOS: 0311
Proficiency/Conduct Marks (# of occasions): () / ()   Fitness Reports:

Awards and Decorations (per DD 214):     Rifle


NJP:

- 20061201:      Article (Missing movement, on or about 1600, 20061126, through neglect miss the movement of the flight to your next duty station, Marine Corps Security Force Company Bahrain, which he was required in the course of duty to move).
         Awarded: Suspended:

- 20081006:      Article (Absence without leave 0630, 20080822 to 1730, 20081002, 41 days)
         Awarded: Suspended:

SCM:

SPCM:

- 20090212:      Article (Larceny and wrongful appropriation) 5 specifications
         Specification 1: Stole US currency of a value of $250.00, the property of LCpl G_, on or about 20071124
         Specification 2: Stole US currency of a value of $200.00, the property of LCpl G_, on or about 20071124 and on or about 20080519
         Specification 3: Stole US currency of a value of $350.00, the property of LCpl G_, on or about 20071209 Specification 4: Stole US currency of a value of $350.00, the property of LCpl G_, on or about 20071124 and on or about 20081119
         Specification 5: Stole US currency of a value of $300.00, the property of LCpl G_, on or about 20080202
         Article (Forgery)
         Sentence: CONF 5 months (20090212-20090307, 24 days)
         CA: The sentence is approved and, except for the Bad-Conduct Discharge, will be executed, but the execution of that part of the sentence extending to all confinement in excess of thirty (30) days is suspended for a period of confinement served plus twelve (12) months thereafter, at which time, unless sooner vacated, the suspended portion will be remitted without further action

CC:

Retention Warning Counseling:

- 20061201:      For your recent NJP held on 20061201 for violation of Article 87 of the UCMJ.

- 20070827:      For my drug involvement identified through my written statement/interview with the Naval Criminal Investigation Services during an investigation conducted from 18 August to 24 August.

- 20081006:      For your NJP held on 20081006, for violation of the UCMJ, specifically, for your violation of Article 86, Absence without leave.

NDRB Documentary Review Conducted (date):        20131016
NDRB Documentary Review Docket Number:   MD13-01441
NDRB Documentary Review Findings:                 Proper as issued and that no change is warranted.


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:                  Other Documentation:    
                  Additional Statements:
         From Applicant:           From/To Representation:           From/To Congress member:        

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 contends PTSD and TBI warrant clemency.
2.       The Applicant contends the BCD is too harsh.
3.       The Applicant contends his post-service recovery warrants clemency.

Decision


Date: 20141210           Location: Washington D.C.        Representation:

By a vote of the Characterization shall .
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 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.

As a result of the Applicant’s claim of PTSD and TBI, in accordance with U.S. Code, Title X, 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. The Applicant stated that he was diagnosed with PTSD and TBI related to his combat service in Iraq. The Applicant’s service record documents completion of a deployment in the Al-Anbar Province of Iraq from October 2007 to May 2008, conducting combat support operations in support of Operation IRAQI FREEDOM. The Applicant’s record of service included 6105 counseling warnings, for of the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave) and Article 87 (Missing movement); and for of the UCMJ: Article 121 (Larceny and wrongful appropriation, 5 specifications) and Article 123 (Forgery). The Applicant was convicted at a SPCM and was separated from the Marine Corps with a Bad Conduct Discharge.

: (Decisional) () . The Applicant contends PTSD and TBI warrant clemency. However, the NDRB determined the Applicant has a pattern of misconduct even prior to the PTSD/TBI diagnosis/onset. The Applicant sated he arrived in Iraq on 29 October 2007. Due to the death of the Applicant’s father, the Applicant was sent home on emergency leave 07 November 2007. The record of trial shows that shortly upon the Applicant’s return to Iraq, he committed repeated acts of larceny and wrongful appropriation. The Applicant’s personal testimony described his time in Iraq prior to going home on emergency leave consisted of only training and conducting the relief in place with the outgoing unit. The Applicant’s personal testimony further described a HMMWV rollover which led to his TBI diagnosis occurred on or about Christmas 2007, shortly after the first documented act of larceny and wrongful appropriation. Although the Applicant may feel that PTSD and TBI were the underlying causes of his misconduct, the record reflects the Applicant had a well-established pattern of misconduct prior to his Iraq deployment and certainly prior to his TBI event.

Further, the record shows the Applicant failed to disclose his pre-service drug use and continued the wrongful use of marijuana while in-service shortly after becoming a U.S. Marine. The medical record dated 31 January 2008 states, “[The Applicant] acknowledged a history of illicit substance use. He stated he first used marijuana at age 17 and he last used when he returned home from Marine boot camp. He indicated he also used nonprescription narcotics from age 17 to age 19. e.g., Percocet and OxyContin.” Additionally, the record shows the Applicant had a NJP for missing movement prior to his Iraq deployment and a retention warning for his drug involvement identified through his written statement/interview with the Naval Criminal Investigation Services which was also prior to his Iraq deployment, and death of his father. Additionally, the record of trial shows that the Applicant stated he was responsible for his behavior; the theft was intentional; and he understood the repeated acts of larceny were wrong. More importantly, the evidence of record did not show that the PTSD or TBI was a sufficient mitigating factor to excuse the Applicant’s conduct or accountability concerning his actions. After an exhaustive review, the NDRB determined that PTSD and TBI do not mitigate the Applicant’s misconduct. Clemency denied.

: (Decisional) () . The Applicant contends the BCD is too harsh. 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 NDRB found the evidence of record did not contain sufficient mitigating or extenuating factors to offset the seriousness of the offenses for which the discharge was awarded. Clemency denied.

: (Decisional) () . The Applicant contends his post-service recovery warrants clemency. The NDRB does consider 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. However, the NDRB determined that the Applicant’s in-service misconduct was not an aberration and that his post-service effort does not warrant clemency. Clemency denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, service record entries, discharge process, and evidence submitted by the Applicant, the Board found clemency was not warranted and the sentence awarded the Applicant at his court-martial was appropriate for the offenses he committed. Therefore, the awarded characterization of service shall remain BAD CONDUCT DISCHARGE and the narrative reason for separation shall remain COURT-MARTIAL.

The Applicant is no longer eligible for additional reviews or hearings by the NDRB. The Applicant may petition the Board for Correction of Naval Records, 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 for further review using DD Form 149. Their website can be found at http://www.donhq.navy.mil/bcnr/bcnr.htm . 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