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)      20090803 - 20100620     Active: 

Period of Service Under Review:
Date of Current Enlistment: 20100621    Age at Enlistment:
Period of Enlistment: Years Months
Date of Discharge: 20130328     Highest Rank:
Length of Service: Year(s) Month(s) 08 Day(s)
Education Level:        AFQT: 47
MOS: 0811
Proficiency/Conduct Marks (# of occasions): () / ()   Fitness Reports:

Awards and Decorations (per DD 214):     Rifle ACM

Periods of UA/CONF:

NJP:

- 20101118:      Article (Larceny and wrongful appropriation)
         Awarded: Suspended:

- 20120117:      Article (Failure to obey order or regulation) 2 specifications
         Specification 1: Fail to obey his general order to wit: General Order #2; to walk my post in a military manner, keeping always on the alert, and observing everything within sight or hearing, an order which was his duty to obey.
         Specification 2: Derelict in the performance of his duties in that, while standing watch on one of the guard towers he willfully removed his personal protective gear, quit his post, and proceeded to conduct physical training without being properly relieved.
         Awarded: Suspended:

- 20120730:      Article (Failure to obey order or regulation)
         Article 113 (Misbehavior of sentinel)
         Awarded: Suspended:

SCM:    

SPCM:   

CC:




Retention Warning Counseling:

- 20101118:      For misconduct, specifically, my recent Battery level NJP for violations of Article 121 (Larceny and wrongful appropriation) of the UCMJ held on 20101118.

- 20120130:      For punishment awarded from a Battalion level NJP proceeding date 20120117, the violation was for Article 92 (Failure to obey order or regulation).

- 20120730:      For punishment awarded from a Battalion level NJP proceeding dated 20120730, the violation was for Article 92 (Failure to obey order or regulation) and Article 113 (Misbehavior of sentinel).

- 20120821:      For cheating on the rifle range on 20120725 PFC S was kicked off of the range for cheating. SNM admitted to falsifying the score card of a Marine shooting on target 15 and was removed from the range without qualifying.

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 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 .

C. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ.

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

Applicant’s Issues

1.       The Applicant seeks an upgrade to enhance employment opportunities.
2.       The Applicant contends his discharge was improper because he was never informed that he could have representation or that he could appeal it before he signed the paperwork.
3.       The Applicant contends his discharge was inequitable because others were punished less harshly for Spice use.
4.       The Applicant contends his discharge was inequitable because he is a war veteran with physical and mental wounds.
5.       The Applicant contends his discharge was inequitable because he was a victim of hazing and an assault.
6.       The Applicant implies that his discharge was inequitable because he had surgery in service and is still physically limited.

Decision

Date: 20141204           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 inference of PTSD, 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 developed mental wounds related to his combat service in Afghanistan. The Applicant’s service record documents completion of a deployment in the Camp Delaram II, Afghanistan from November 2011 to May 2012, conducting combat service support operations in support of Operation ENDURING 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 and for of the Uniform Code of Military Justice (UCMJ): Article 92 (Failure to obey order or regulation, three specifications), Article 113 (Misbehavior of sentinel, one specification), and Article 121 (Larceny and wrongful appropriation, one 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.

: (Nondecisional) The Applicant seeks an upgrade to enhance employment opportunities. The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment. Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.

: (Decisional) () . The Applicant contends his discharge was improper because he was never informed that he could have representation or that he could appeal it before he signed the paperwork. The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that he was denied the right of appeal at any of his nonjudical punishments or disciplinary proceedings. Further, the evidence of record does show that during his discharge proceedings that the Applicant freely elected to waive all of his rights. The Applicant’s separation was legally reviewed by a judge advocate general and found to be sufficient in both law and fact. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case. Relief denied.

: (Decisional) () . The Applicant contends his discharge was inequitable because others were punished less harshly for Spice use. The records available to the NDRB failed to show that the Applicant’s misconduct included the use of Spice or any other illegal substances. Regardless, the NDRB reviewed the Applicant’s contention that his discharge was inequitable because other servicemembers were punished less harshly for similar misconduct to his own. 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 Marine Corps. A preponderance of the evidence reviewed supports the conclusion that the Applicant demonstrated a clear pattern of misconduct, that separation from the Marine Corps was appropriate, and that an Under Other Than Honorable Conditions discharge was warranted. Relief denied.

4: (Decisional) () . The Applicant contends his discharge was inequitable because he is a war veteran with physical and mental wounds. The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue. The NDRB did not find any reference to a medical diagnosis of PTSD in the Applicant’s service record to support his claim, and the Applicant did not provide any documentary evidence of a medical diagnosis by competent medical authorities to support his claim. The Applicant was screened for both PTSD and TBI during his administrative separation and was found to have neither by competent medical authorities. Furthermore, the evidence of the record indicates that his duties while in combat consisted of detention operations/guard force activities. Though the Applicant may feel that mental health issues were 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. Larceny conducted before deploying, failure to obey orders as a sentry while deployed in a combat zone, and misbehavior as a sentinel while deployed in a combat zone, were all conscious decisions to violate the tenants of honorable and faithful service. Relief denied.

5: (Decisional) () . The Applicant contends his discharge was inequitable because he was a victim of hazing and an assault. Statements alone, without sufficient documentary evidence, are not enough for the NDRB to form a basis of relief. Relief denied.

6: (Decisional) () . The Applicant implies that his discharge was inequitable because he had surgery in service and is still physically limited. Per regulations, the initiation and submission of medical boards are at the discretion of the individual physician. There is no indication in the evidence of record or in the documentation submitted by the Applicant that the Applicant was recommended for or processed for a medical board by proper authority. Further, the evidence of record does not indicate that proper authority erred by not initiating a medical board for the Applicant. Additionally Department of Defense regulations provide that disciplinary separations supersede disability separations. Finally, 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 Board for Correction of Naval Records can grant this type of narrative reason change. The NDRB found the Applicant’s issue to be without merit. 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 .

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