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)      20080501 - 20081117     Active: 

Period of Service Under Review:
Date of Current Enlistment: 20081118    Age at Enlistment:
Period of Enlistment: Years Months
Date of Discharge: 20111014     Highest Rank:
Length of Service: Year(s) Month(s) 27 Day(s)
Education Level:        AFQT: 33
MOS: 3112
Proficiency/Conduct Marks (# of occasions): () / ()   Fitness Reports:

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

Periods of CONF:

NJP:

- 20110408:      Article (Absence without leave; 2 specifications)
         Specification 1: Did on 20110329 at 0700 not report to work. At 0715 First Sergeant made contact and SNM stated he was on his way to work. SNM did not show up to work until 0740.
         Specification 2: Did on 20110208 at or about 0415, failed to appear at the table three shoot. Your NCO called numerous times and showed up at your residence at 0530. SNM called his NCO stating that he was unable to drive due to being intoxicated from previous night and was picked up by his NCO at 0615.)
         Article (Failure to obey an order or regulation; On 20110328, left the confines of the base while assigned to the High Risk Program.)
         Awarded: Suspended:

- 20110621:      Article (Insubordinate conduct towards warrant officer, noncommissioned officer, or petty officer; On 20110412 was disrespectful in language to a SNCO, who was in the execution of his duty.)
         Article (Assault; Did on 20110412 assault a SNCO by pushing him in the chest.)
         Awarded: Suspended:

- 20110815:      Article (Assault; On base housing on 20110807 at or about 1500, SNM got in a verbal altercation with a female reservist Marine who was temporarily staying at the residence and was forcefully held under her own free will after being picked up and thrown on the bed after she repeatedly stated to let her go. During this time after reaching for her shirt both shirt and bra ripped off.
         Awarded: Suspended:



- 20110928:      Article (Absence without leave; on 20110921 at or about 0900, left his place of duty and did not return until 20110926 at 1300, 5 days)
         Article (Provoking speeches or gestures; on 20110921, began to shout a threat to CPL P____, instructed CPL P___ to stand up because he is about to start swinging.)
         Awarded: Suspended:

- 20111007:      Article (Assault; Did on 20111003, walk up to Pvt B___ and said some words to Pvt B___, then asked Pvt B___ if it was “like that” then SNM asked Pvt B___ “Do you want me to whip you a__?” SNM then swung his fist to strike Pvt B___)
         Awarded: Suspended:

SCM:

SPCM:

CC:

Retention Warning Counseling:

- 20110408:      For Article 86 (Absence without leave; 2 specifications) and Article 92 (Failure to obey an order or regulation)

- 20110621:      For Article 91(Insubordinate conduct towards warrant officer, noncommissioned officer, or petty officer) and Article 128 (Assault)

- 20110818:      For Article 128 (Assault)

- 20110929:      For Article 86 (Absence without leave) and Article 117 (Provoking speeches and gestures)

- 20111012:      For Article 128 (Assault)

Administrative Corrections to the Applicant’s DD 214

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

         “PVT”
         “E-1”
         “2011 10 12”

The NDRB will recommend to the Commandant of the Marine Corps, MMSB-13, 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:        



Pertinent Regulation/Law

A. Paragraph 6210, MISCONDUCT of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), 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, Article 91,92, and 128.

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

Applicant’s Issues

1.       The Applicant contends that an event triggered from his PTSD that led to a NJP started his administrative process and kept him from meeting with the medical discharge board.

Decision


Date: 2015122            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. 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 was diagnosed with PTSD related to his combat service. The Applicant’s service record documents completion of deployments in support of operation ENDURING FREEDOM and operation MOSHTARAK.

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 86 (Absence without leave; 3 specifications), Article 91 (Insubordinate conduct towards warrant officer, noncommissioned officer, or petty officer, 1 specification) Article 92 (Failure to obey an order or regulation; 1 specification), Article 117 (Provoking speeches or gestures, 1 specifaction), and Article 128 (Assault, 3 specifications). 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.

: (Decisional) () . The Applicant contends that an event triggered from his PTSD that led to a NJP started his administrative process and kept him from meeting with the medical discharge board. 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 requested and received the Applicant’s medical treatment records from the VA. The medical records did not indicate any findings of PTSD while in service nor did it document a medical board pending for the Applicant. However, the record does document that the Applicant was screened for PTSD, showed symptoms of PTSD and was recommended for further evaluation. Upon further medical evaluation of the Applicant, the record shows that the he was not diagnosed with PTSD. The record also stipulated that PTSD was not a “contributing factor in the member’s actions that resulted in the command’s recommendation for involuntary administrative separation.” Furthermore, the Applicant did not provide any documentary evidence of a medical diagnosis by competent medical authorities to support his claim. The only documentation submitted by the Applicant to support his claim is a letter dated 20140724 by a Provisional Licensed Professional Counselor at the Higher Ground Recovery Center, stating that he “demonstrates symptoms consistent with PTSD.” Though the Applicant may feel that PTSD 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 PTSD was a sufficient mitigating factor to excuse the Applicant’s conduct or accountability concerning his actions. After an exhaustive review, the NDRB determined that PTSD did not mitigate the Applicant’s misconduct. A preponderance of the evidence reviewed supports the conclusion that the Applicant committed a serious offense, that separation from the Naval Service was appropriate, and that an Under Other Than Honorable Conditions discharge was warranted. 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 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