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)      None     Active: 

Period of Service Under Review:
Date of Current Enlistment: 20070430    Age at Enlistment: 19
Period of Enlistment: Years Months
Date of Discharge: 20101222     Highest Rank:
Length of Service: Year(s) Month(s) 23 Day(s)
Education Level:        AFQT: 41
MOS: 0121
Proficiency/Conduct Marks (# of occasions): () / ()   Fitness Reports:

Awards and Decorations (per DD 214):     Rifle

NJP:

- 20081006:      Article (Failure to obey order or regulation) 2 specifications
         Specification 1: Operating a motor vehicle on base while under suspension
         Specification 2: Operating a motor vehicle without insurance
         Awarded: Suspended: Vacated: 20081030

- 20081029:      Article (Absent without leave, 7 specifications)
         Specification 1: Failed to go to restriction muster at 0701 on 20081007
         Specification 2: Failed to go to restriction muster at 1301 on 20081010
         Specification 3: Failed to go to restriction muster at 0701 on 20081010
         Specification 4: Failed to go to restriction muster at 1301 on 20081012
         Specification 5: Failed to go to restriction muster at 0701 on 20081013
         Specification 6: Failed to go to restriction muster at 0901 on 20081013
         Specification 7: Failed to go to restriction muster at 1701 on 20081019
         Awarded: Suspended:

SCM:

SPCM:

- 20090807:      Article 86 (Absent without leave, 9 Specifications)
         Specification 1: Failed to go to restriction muster at 0700 on 20081205
         Specification 2: Failed to go to restriction muster at 0700 on 20081207
         Specification 3: Failed to go to restriction muster at 0900 on 20081207
         Specification 4: Failed to go to restriction muster at 0700 on 20081208
         Specification 5: Failed to go to restriction muster at 0700 on 20081213
         Specification 6: Failed to go to restriction muster at 0700 on 20081216
         Specification 7: Failed to go to restriction muster at 0700 on 20081218
         Specification 8: Failed to go to restriction muster at 0700 on 20081221
         Specification 9: Did absent himself without authority on 20090204 and remained so until apprehended on 20090409, 64 days
         Article 95 (Resistance, flight, breach of arrest, and escape, 4 Specifications)
         Specification 1: Having been placed in arrest by a person authorized to order the accused into arrest, did on or about 0800, 20090413, break said arrest.
         Specification 2: On or about 20090413, flee apprehension from a person authorized to apprehend the accused.
         Specification 3: Having been placed in arrest by a person authorized to order the accused into arrest, did on or about 0810, 20090413, break said arrest.
         Specification 4: On or about 20090413, resisted being apprehended by a person authorized to apprehend the accused.
         Article 134 (General Article, on 20081226, having been ordered on restriction by a person authorized to do so, broke said restriction)
         Article 112a (Wrongful use, possession, etc., of controlled substances, Marijuana)
         Sentence: CONF 150 days
         CA Action: Sentence is approved and, except for the Bad Conduct Discharge, ordered executed, but the execution of that part of the sentence extending to all confinement in excess of one hundred twenty days is suspended for the period of confinement served plus six months thereafter, at which time, unless sooner vacated, the suspended portion will be remitted without further action. Automatic forfeitures pursuant to Article 58b, UCMJ, apply.

CC:

Retention Warning Counseling: 1

- 20081029:      For Violations of Article 92(x2) (NJP 20081006)

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 is seeking VA benefits for mental health treatment.
2.       The Applicant contends that mental illness (bi-polar and schizophrenia) were the reasons for his misconduct.

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 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 86 (Absent without leave, seven specifications), and Article 92 (Failure to obey order or regulation, 2 specifications), and for of the UCMJ: Article 86 (Absent without leave, 9 specifications including one for 64 days), Article 95 (Resistance, flight, breach of arrest, and escape, 4 specifications), Article 134 (General article), and Article 112a (Wrongful use, possession, etc., of controlled substances). The Applicant acknowledged complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 16 April 2007. Based on the offense(s) committed by the Applicant, and after appellate review, the Applicant was discharged with a Bad Conduct Discharge as a result of a Special Court Martial.

: (Nondecisional) The Applicant is seeking VA benefits for mental health treatment. 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 clemency 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.

: (Decisional) () . The Applicant contends that undiagnosed mental illness (bi-polar and schizophrenia) were the reasons for his misconduct. 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 NDRB requested the Applicant’s medical treatment records, but the VA was unable to locate them. Furthermore, the NDRB did not find any reference to a medical diagnosis of bi-polar or schizophrenia in the Applicant’s service record to support his claim, nor did the Applicant provide any documentary evidence of a medical diagnosis by competent medical authorities to support his claim. Though the Applicant may feel that his alleged bi-polar or schizophrenia disorder was the underlying cause of his misconduct, the record reflects willful misconduct that demonstrated he was unfit for further service. 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 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