Docket No. MD14-00344

2

.ex-Pvt, USMC
CURRENT DISCHARGE ANP APPLICANT’S REQUEST

Application Received: 20131203

Characterization of Service Received: (per DD 214) BAD CONDUCT DISCHARGE
Narrative Reason for Discharge: (per DD 214) COURT-MARTIAL

Authority for Discharge: (per DD 214) MARCORSEPMAN 1105 [COURT-MARTIAL}

Applicant’s Request: Characterization change to: HONORABLE OR GENERAL (UNDER HONORABLE CONDIT TONS)
‘Narrative Reason change to: SECRETARIAL DISCRETION

SUMMARY OF SERVICE
Prior Service:
Inactive: USMCR (DEP) 19970219 - 19970629 COG Active: USMC 19970630 - 20010117 HON
Period of Service Under Review:
Date of Current Enlistment: 20010118 Age at Enlistment: 23
Period of Enlistment: 4 Years 0 Months
Date of Discharge: 20050527 Highest Rank: SERGEANT
Length of Service: 04 Years 04 Months 10 Days
Education Level: 12 AFQT: NFIR
MOS: 1142

Proficiency/Conduct Marks (# of occasions): 4.5 (NFIR)/ 4.4 (NFIR) Fitness Reports: AVAILABLE
Awards and Decorations (per DD 214): Rifle EX (2) Pistol MM NMCAM (3) GCM NDSM SSDR NUC COC
Period of UA: NONE
NJP: NONE SCM: NONE CC: NONE Retention Warming Counseling: NONE
SPCM: i
- 20030417: Article 107 (False official statement, 4 specifications)
Sentence: RIR E-1 FOP CONF 9 months (20030 | 10-20030825, 227 days) BCD

TYPES OF DOCUMENTS SUBMITTED/REVIEWED

Related to Military Service: :
DD 214: 4 Service/Medical Record: Other Records: Cj
Related to Post-Service Period:
Employment: C Finances: C] Education/Training: |
Health/Medical Records: [x] Rehabilitation/Treatment: [_] Criminal Records: T]
Personal Documentation: [] Community Service: TJ References: xX
Department of VA letter: [] Other Documentation: (J
Additional Statements:
From Applicant: Cj From/To Representation: [XJ From/To Congress member: C4

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.

Key: NFIR - Not found in record RESTR - Restriction NJP - Nonjudicial punishment SCM - Summary court-martial
SPCM - Special court-martial FOP - Forfeiture of pay RIR - Reduction in rank EPD - Extra duties
CONF - Confinement CC - Civilian conviction CCU - Correctional Custody Unit CBW - Confinement on bread and water
Docket No. MD14-00344

 

 

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

APPLICANT’S ISSUES

1. The Applicant contends his in-service conduct and performance warrants an upgrade.
The Applicant contends Post-Traumatic Stress Disorder (PTSD), delusional disorder, and depressive disorder warrant
clemency,

3. The Applicant seeks clemency based on post-service conduct and accomplishments.

DECISION

Date: 20140820 PERSONAL APPEARANCE HEARING Location: WASHINGTON D.C. Representation: Civilian Counsel

By a vote of 3-2 the Characterization shall change to UNDER OTHER THAN HONORABLE CONDITIONS.
By a vote of 5-0 the Narrative Reason shall remain COURT-MARTIAL.

DISCUSSION
As a result of the Applicant’s claim of PTSD, in accordance with U.S, Code, Title X, Section 1553(d)(1), the Naval Discharge
Review Board reviewed the Applicant’s record to see if he deployed in support of a contingency operation and was, as a
consequence of that deployment, diagnosed with either PTSD or Traumatic Brain Injury. A review of his record revealed that
he did not deploy in support of a contingency operation, and so his case did not warrant an expedited review in accordance with
U.S. Code, Title X, Section 1553(d)(1). The NDRB, however, did include a psychiatrist on the beard.

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 in his second enlistment included one
special court-martial (SPCM) for violations of the UCMJ: Article 107 (False official statements, 4 specifications). The
Applicant’s service record documents a punitive conviction and punishment, as adjudged by a Special Court-Martial, on 17
April 2003. 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, reduction to the pay
grade of E-1, forfeiture of $767 pay per month for nine months, and confinement for a period of nine months. The Convening
Authority approved the sentence as adjudged. 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 on 14 March 2005.

Issue 1: (Decisional) (Clemency) RELIEF NOT WARRANTED. The Applicant contends his in-service conduct and
performance warrants an upgrade. The Applicant received an Honorable characterization of service for his first enlistment from
June 1997 to January 2001. Each period of enlistrnent is an independent obligation and characterization is determined for that
specific period of time. During his second enlistment, he was found guilty of violating UCMJ Article 107 at a Special Court-
Martial and sentenced to a Bad Conduct Discharge. Based on the Applicant’s record of service in his second enlistment, 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. Relief denied.

Issue 2: (Decisional) (Clemency) RELIEF NOT WARRANTED. The Applicant contends PTSD, detusional disorder, and
depressive disorder warrant clemency. A review of the Applicant’s record did reveal that he was evaluated by a licensed
clinical psychologist on 11 February 2013 and diagnosed with PTSD, depressive disorder, and delusional disorder. Despite the
psychiatric diagnosis, proper medical authority determined the Applicant was able to appreciate the nature, quality, and
wrongfulness of his conduct at the time of his criminal conduct. Though the Applicant may feel that PTSD, delusional disorder,
and depressive disorder mitigate his misconduct, the record reflects willful misconduct and did not show that he was either not
responsible for his conduct or that he should not be held accountable for his actions. The NDRB determined PTSD, delusional
disorder, and depressive disorder did not mitigate his misconduct, and clemency is not warranted. Relief denied.