ex-, USMC

Current Discharge and Applicant’s Request

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

Summary of Service

Prior Service:
Inactive:        USMCR (DEP)      20070126 - 20070312     Active: 

Period of Service Under Review:
Date of Current Enlistment: 20070313    Age at Enlistment:
Period of Enlistment: Years Months
Date of Discharge: 20091027     Highest Rank:
Length of Service: Year(s) Month(s) 15 Day(s)
Education Level:        AFQT: 96
MOS: 0311
Proficiency/Conduct Marks (# of occasions): () / ()   Fitness Reports:

Awards and Decorations (per DD 214):     Rifle (2)


NJP:

- 20071114:      Article (Failure to obey order or regulation; wrongfully consuming alcohol under the age of 21.)
         Article 109 (Property other than military property of the U.S – loss, damage, destruction, waste, spoilage, or destruction; by willingly and wrongfully destroying a windshield, a value of $500.00)
         Article 121 (Larceny or wrongful appropriation; by stealing a case of Rockstar drinks, 1 case of protein, and a coffee maker.)
         Article 134 (General Article – drunk and disorderly)
         Awarded: Suspended:

- 20080321:      Article (General Article – carrying a M249 SAW in an improper manner by having his finger on the trigger causing the weapon to negligently discharge a blank round)
         Awarded: Suspended:

- 20090107:      Article (Failure to obey order or regulation) 2 specifications
         Specification 1: Having knowledge of a lawful order given to him by his entire chain of command, to wit, not to drive under the influence of alcohol, did on or about 0130 28 December 2008, fail to obey the same by driving under the influence of alcohol.
         Specification 2: Having knowledge of a lawful order given to him by his entire chain of command, to wit, wear a seatbelt at all times when having on base, did on or about 1448 27 December 2008, fail to obey the same by driving on Camp Lejuene without a seat belt.
         Article 95 (Resisting apprehension, flight breach of arrest, and escape; damage property owned by Sunset Inn and then fled the scene of the accident)
         Article 109 (Property other than military property of the U.S – loss, damage, destruction, waste, spoilage, or destruction; by failing to stop and notify the hotel clerk he had hit the retaining wall, which caused some minor damage to private property)
         Awarded: Suspended:

SCM:

- 20090121:      Article (Absence without leave – fail to report to appointed place of duty on 20090116, 20090117, and 20090118)
         Article 92 (Failure to obey order or regulation –having knowledge of a lawful order given to him by his entire chain of command, to wit, not to break restriction, did on or about 2330 16 January 2009, fail to obey the same by departing the battalion and driving to the Jo Jo bar to pick up two fellow Marines without authorization.)
         Sentence: (20090121-20090213, 24 days)

SPCM:

CC:

Retention Warning Counseling:

- 20090107:      For misconduct, specifically, my recent NJP for violation of Articles 92, 95, and 109 of the UCMJ held on 20090107

- 20090925:      For your failure to maintain and properly secure your gear. As a result of your negligence, your magazine pouch, combat leader gloves, and your Goretex desert jacket were lost while in the laundry room unsupervised. It is a Marine’s responsibility to maintain and keep good accountability of his gear from the moment he signs for it at a consolidated issue facility.

NDRB Documentary Review Conducted (date):        20130627
NDRB Documentary Review Docket Number:   MD12-01767
NDRB Documentary Review Findings:                 Proper as issued and that no change is warranted.

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

         “”
        
The NDRB will recommend to the Commandant of the Marine Corps that the DD 214 be corrected as appropriate.

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:        

Types of Witnesses Who Testified

         Expert:           Character:      




Pertinent Regulation/Law

A. Paragraph 6210, MISCONDUCT , 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 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 that the NJP incidents cited as reason for the summary court-martial were not incidents of “serious misconduct”.
2. The Applicant contends that he served honorably under stressful combat situations while in Iraq.
3. The Applicant contends that the incidents subsequent to his tour of duty in Iraq were the result of his undiagnosed PTSD and TBI and were not “willful and knowing” with a recognition of the consequences of the actions.
4. The Applicant contends that his medical records of treatment while still on active duty in the Marine Corps show the symptoms of PTSD (or PTSD related condition) and TBI, although not specifically diagnosed as such.

Decision


Date: 2015511            Location: Washington D.C.        Representation:

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 or 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. 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 to Iraq from April to October 2008, conducting combat service support 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 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. The Board did complete a thorough review of the circumstances that led to discharge and the discharge process to ensure discharge met the pertinent standards of equity and propriety. The Applicant’s record of service included 6105 counseling warnings, for of the Uniform Code of Military Justice (UCMJ): Article 92 (Failure to obey an order or regulation, 3 specifications), Article 95 (Resisting apprehension, flight breach of arrest, and escape, 1 specification), Article 109 (Property other than military property of the U.S – loss, damage, destruction, waste, spoilage, or destruction , 2 specification), Article 121 (Larceny or wrongful appropriation, 1 specification), and Article 134 (General article, 1 specification); and for of the UCMJ: Article 86 (Absence without leave, 1 specification), and Article 92 (Failure to obey an order or regulation, 1 specification). Based on the offense(s) committed by the Applicant, command administratively processed for separation. When notified of administrative separation processing using the procedure, the Applicant rights to consult with a qualified counsel, submit a written statement, and request an administrative board. The Administrative Board found by a vote of 3 to 0 that the preponderance of the evidence supported misconduct and recommended by a vote of 3 to 0 for separation. The Separating Authority(SA) approved the Administrative Board’s recommendation to separate the Applicant. The SA directed the Applicant be separated with Under Other Than Honorable Conditions discharge.


: (Decisional) () . The Applicant contends that the NJP incidents cited as reason for the summary court-martial were not incidents of “serious misconduct”. The NDRB reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis. If such a review reveals an impropriety or inequity, relief is in order. Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval Service. Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Navy. In accordance with MARCORSEPMAN 6210.3 (Pattern of Misconduct), “a minimum of TWO incidents occurring within one enlistment is required. Misconduct occurring in an extension of an enlistment is considered to be within one enlistment. The infractions may be minor or more serious.” The Applicant was found guilty of committing misconduct at three NJPs and one summary court martial. The Applicant was also represented by counsel at his administrative board, and that board found by a vote of 3-0 that the Applicant was guilty of a pattern of misconduct. Furthermore, many of the violations that the Applicant was found guilty of at NJP, Articles 92, 95, 109, and 121, alone could have led to the Applicant’s separation without any additional misconduct. A preponderance of the evidence reviewed supports the conclusion that the Applicant committed a pattern of misconduct, that separation from the Naval Service was appropriate, and that an Under Other Than Honorable Conditions discharge was warranted. Relief denied.

: (Decisional) () . The Applicant contends that he served honorably under stressful combat situations while in Iraq. The record of service does show that the Applicant deployed to Iraq from April through October 2008 without any misconduct documented in the record during this time period. Although the Applicant testified that he served well during his time in Iraq, the official record documents his proficiency and conduct marks from 20080131 -20080731 to be 4.3/3.9. This in itself does not characterize the Applicant’s service, but does act as some evidence as to how well the Applicant served while on deployment. If 4.3/3.9 were the proficiency and conduct mark averages for the entirety of service at the end of a Marine’s Enlisted Active Obligated Service in the ranks of Corporal and below, his discharge would have been characterized as General Under Honorable Conditions due to his conduct marks being below 4.0. The NDRB did find that the Applicant served without misconduct during his deployment to Iraq, but did also recognize that he may have had some minor issues that did not meet the merits of NJP evidenced by his low conduct mark. Furthermore, the entirety of the Applicant’s service record including: proficiency and conduct marks, combat tours, decorations, and awards, would have been taken into consideration when deciding his characterization of service prior to discharge. Based on the entirety of the Applicant’s service record, the NDRB did not find any impropriety or inequity to his discharge. Relief denied.

: (Decisional) () . The Applicant contends that the incidents subsequent to his tour of duty in Iraq were the result of his undiagnosed PTSD and TBI and were not “willful and knowing” with a recognition of the consequences of the actions. The Applicant also contends that his medical records of treatment while still on active duty in the Marine Corps show the symptoms of PTSD (or PTSD related condition) and TBI, although not specifically diagnosed as such. When reviewing a discharge, the NDRB does consider the extent to which a medical problem might affect an Applicant’s performance and ability to conform to the military’s standards of conduct and discipline. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue. In reviewing the Applicant’s submitted medical records, the Applicant does not submit any documentation supporting a diagnosis of PTSD, but does submit documentation stating that he experienced numerous incidents of head trauma with a mild diagnosis of TBI while serving on active duty in the Marine Corps. The Applicant does submit some post-service documentation claiming that he has been diagnosed with both PTSD and TBI. However, the record of service and the Applicant’s personal testimony did not provide substantial and credible evidence to refute the presumption of regularity to the discharge process of the Applicant.

The Applicant was screened for alcohol related issues on 20090522. This screening was conducted several months after his last adjudicated misconduct on 20090121. As part of the screening, the Applicant was assessed for PTSD and TBI with only a finding of mild TBI scoring a 13 on the TBI screener. Furthermore, during this same assessment, the Applicant reported no combat stress or any other mitigation to his misconduct. While the Applicant may feel that PTSD and TBI were the underlying causes of his misconduct, the record clearly reflects that at the time in which the misconduct was committed, it was willful and knowing misconduct and demonstrated he was unfit for further service. The Applicant was given ample opportunity in-service with qualified medical professionals to present matters of mitigation, and he was also given the opportunity to contest his discharge at an administrative separations board with the aid of military counsel. On 20090629, the administrative separations board found that the Applicant was guilty of a pattern of misconduct, and that his characterization of service should be Under Other Than Honorable Conditions. Subsequent to the findings of the administrative separations board, the Applicant still underwent a lengthy period of medical evaluation to ensure that mitigation should not be given to his misconduct. No mitigation to his misconduct was found and the Applicant was discharged on 20091027. The evidence of record did not show that PTSD or TBI was a sufficient mitigating factor to excuse the Applicant’s conduct or accountability concerning his actions. Further, the evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.

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 Therefore, the awarded characterization of service shall remain UNDER OTHER THAN HONORABLE CONDITIONS and the narrative reason for separation shall remain MISCONDUCT. The Applicant is not eligible for further reviews 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