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)      20080306 - 20080914     Active: 

Period of Service Under Review:
Date of Current Enlistment: 20080915    Age at Enlistment:
Period of Enlistment: Years Months
Date of Discharge: 20130205     Highest Rank:
Length of Service: Year(s) Month(s) 09 Day(s)
Education Level:        AFQT: 60
MOS: 3531
Proficiency/Conduct Marks (# of occasions): (NFIR)/3.9(NFIR)    Fitness Reports:

Awards and Decorations (per DD 214):     Rifle

NJP: 2

- 20091222:      Article (Wrongful use, possession, etc., of controlled substances), THC 66ng/mL
         Awarded: Suspended:

- 20110321:      Article 91(Insubordinate conduct toward a warrant officer, non-commissioned officer, or petty officer), threatening with contempt and being disrespectful toward an NCO and SNCO who were in the execution of their duties.
         Article 92 (Failure to obey order or regulation), when in formation, refused to go to the position of attention after the formation had been so ordered.
         Awarded: Suspended:

SCM:

SPCM:

- 20120517:      Article 86 (Absent without leave), 5 specifications
         Specification 1: On 20110621, 1400, failed to go to the Naval Hospital at Camp Lejeune, his appointed place of duty.
         Specification 2: On 20120301, 0730, failed to go to the Naval Hospital at Camp Lejeune, his appointed place of duty.
         Specification 3: On 20120302, 0730, failed to go to the Naval Hospital at Camp Lejeune, his appointed place of duty.
         Specification 4: On 20120305, 0730, failed to go to the Naval Hospital at Camp Lejeune, his appointed place of duty.
         Specification5: On 20120306, 0730, failed to go to the Naval Hospital at Camp Lejeune, his appointed place of duty.
         Article 92 (Failure to obey order or regulation), 2 specifications
         Specification 1: On or about 20120304 wrongfully smoked Spice, or a variant thereof.
         Specification 2: On or about 20100127 wrongfully smoked Spice, or a variant thereof.
         Article 128 (Assault), Unlawfully struck a person by flipping her out of her chair, and causing her to hit her head on a wall
         Sentence: CONF 70 days
         CA Action: The sentence is approved, and subject to the limitations contained in the UCMJ, Manual for Courts Martial, applicable regulations, and this action, is ordered executed.

CC:

Retention Warning Counseling: 2

- 20110526:      For violation of Article 86, Absent without leave, by failing to report to unit PT on 20110525

- 20110321:      For violation of Articles 91 and 92 (NJP 20110321)

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 would like to improve his employment opportunities, and better his outlook in life.
2.       The Applicant contends that stressors during his time in the Marine Corps, specifically, the loss of a child during childbirth, and traumatic experiences during deployment, and Traumatic Brain Injury as the result of an IED explosion were the cause of his misconduct.
3.       The Applicant contends that his post service conduct, including intensive in-patient therapy should be looked on favorably in the decision to grant clemency.

Decision


Date: 20141230           Location: Washington D.C.        Representation:

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

Discussion

The Applicant stated that he received a traumatic blow to the head during his combat service in Afghanistan. The Applicant’s service record documents a post IED blast medical evaluation on or about 23 August 2010 while the Applicant was conducting combat support operations in support of Operation ENDURING FREEDOM.

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. 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 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 completed a thorough review of the circumstances that led to the Applicant’s 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 91 (Insubordinate conduct toward a warrant officer, non-commissioned officer, or petty officer), Article 92 (Failure to obey an order or regulation), and Article 112a (Wrongful use, possession, etc., of controlled substances); and for of the UCMJ: Article 86 (Absent without leave, 5 specifications) Article 92 (Failure to obey order or regulation), and Article 128 (Assault) The Applicant acknowledged complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 28 February 2008. Based on the offense(s) committed by the Applicant, command convened a Special Court Martial in his case. The result of the Special Court Martial included a punitive discharge. 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.

: (Non-Decisional) The Applicant would like to improve his employment opportunities, and better his outlook in life. The NDRB has no authority to grant clemency for the sole purpose of enhancing employment opportunities or future outlook in life. Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.



: (Decisional) () . The Applicant contends that stressors during his time in the Marine Corps, specifically, the loss of a child during childbirth, and traumatic experiences during deployment including Traumatic Brain Injury as the result of an IED explosion, were the cause of his misconduct. Regarding this issue, the Applicant contends that he was not responsible for his misconduct due to family stressors and TBI. However, his family stressors, and the incident that led to his head injury are not new, and if applicable, would have been presented during the Applicant’s Court Martial. In accordance with Secretary of the Navy Instruction 5420.174D of 22 December 2004, relevant and material facts as stated in a court-martial are presumed by the NDRB to be established facts. As such, matters of propriety related to the conduct of a punitive court-martial (e.g., Special Court-Martial) are addressed through the appellate review process by the Navy-Marine Corps Court of Criminal Appeals or through further petitioning for a review by the Court of Appeals of the Armed Forces. The Applicant’s appellate rights statement and certification of his acknowledgment of those rights, which detail this process, are appended to the verbatim record of trial by court-martial. In the Applicant’s case, the Navy-Marine Corps Court of Criminal Appeals reviewed the case and affirmed the decision. The Board determined that there was no new information that showed that the Applicant was not responsible for his actions, and therefore determined that clemency was not warranted. Relief denied.

: (Decisional) () . The Applicant contends that his post service conduct, including intensive in-patient therapy should be looked on favorably in the decision to grant 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, proof of long-term residential rehabilitation treatment, and four character references. The Applicant could have provided documentation as detailed in the Post-Service Conduct paragraph in the Addendum , however, completion of these items alone does not guarantee clemency 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 that the documentation submitted by the Applicant does not demonstrate if in-service misconduct was an aberration. The characterization of service received was appropriate considering the length of service and UCMJ violations. 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 BAD CONDUCT DISCHARGE and the narrative reason for separation shall remain COURT MARTIAL.
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