ex-Pvt, USMC

Current Discharge and Applicant’s Request

Applicant’s Request:     Characterization change to: GENERAL (UNDER HONORABLE CONDITIONS)
         Narrative Reason change to: NONE REQUESTED

Summary of Service

Prior Service:
Inactive:        USMCR (DEP)      20031110 - 20040922 COG         Active:  NONE

Period of Service Under Review:
Date of Current Enlistment: 20040923    Age at Enlistment: 17 (PARENTAL CONSENT)
Period of Enlistment: 4 Years 0 Months
Date of Discharge: 20050831     Highest Rank: PRIVATE FIRST CLASS
Length of Service: 00 Year(s) 11 Month(s) 09 Day(s)
Education Level: 12     AFQT: 94
MOS: 3043
Proficiency/Conduct Marks (# of occasions): 4.0 (3) / 3.9 (3)   Fitness Reports: NOT APPLICABLE

Awards and Decorations (per DD 214):     NDSM

Periods of CONF: NONE

NJP: 2

- 20050601:      Article 86 (Absence without leave; 20050421-20050513, 23 days)
         Article 92 (Failure to obey order or regulation; O/A 20050514, SNM had cat living in his barracks room in violation of MCCSSSO P11101.5D and O/A 20050421, SNM violated MCO P1020.34G by wearing an earring)
         Awarded: RIR FOP RESTR EPD Suspended: NONE

- 20050712:      Article 86 (Absence without leave; O/A 20050618, SNM failed to report to restriction muster)
         Article 134 (General article; Threat, communicating; O/A 20050116, SNM communicated a threat to an Officer that he wanted to kill a fellow SNM.)
         Article 134 (General article; Weapon: concealed, carrying. O/A 20050618, SNM unlawfully carried a concealed weapon onboard Camp Lejeune.)
         Awarded: FOP RESTR EPD Suspended: FOP RESTR EPD (Vacated 20050722. CO letter that date documented that charges for additional offenses would not be contemplated.)

SCM: NONE        SPCM: NONE       CC: NONE

Retention Warning Counseling: 1

- 20050613:      For deficiencies resulting in NJP for Art 86/92.

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Administrative Corrections to the Applicant’s DD 214

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

         Block 28, Narrative Reason for Separation, should read: “MISCONDUCT”

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 P1900.16F), 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 his behaviors which resulted in the Under Other than Honorable Conditions discharge were a result of service related epilepsy.
2. The Applicant contends that he was being processed for medical separation prior to separation proceedings for disciplinary actions and that the medical proceedings should have taken precedence.

Decision

Date: 20140225 DOCUMENTARY REVIEW       Location: Washington D.C.        Representation: NONE

By a vote of 5-0 the Characterization shall remain UNDER OTHER THAN HONORABLE CONDITIONS .
By a vote of 5-0 the Narrative Reason shall remain MISCONDUCT .


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 Applicant’s record of service included one 6105 counseling warnings, two nonjudicial punishments (NJPs) for violations of the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave), Article 92 (Failure to obey order or regulation), Article 134 (General article; Threat, communicating) and Article 134 (General article; Weapon: concealed, carrying). Based on the offenses committed by the Applicant, his command administratively processed him for separation. When notified of administrative separation processing using the administrative board procedure, the Applicant waived his rights to consult with a qualified counsel, submit a written statement, and request an administrative board. The applicant did submit a written statement that was included in his service record.

Issue 1: (Decisional) (Equity) RELIEF NOT WARRANTED. The Applicant contends that his behaviors which resulted in the Under Other than Honorable Conditions discharge were a result of service related epilepsy. The Applicant signed a Statement of Release for his pre-service medical history to be forwarded to Camp Johnson Branch Clinic at Camp Lejeune, NC on 09 March 2005. The medical records forwarded by Charity Hospital in New Orleans, LA on 28 March 2005 documented that the Applicant was being treated for epilepsy before entering the service. On 07 November 2003 during the medical pre-screening for entering the service, the Applicant checked “no” next to epilepsy when asked if he ever had or do you now have the condition. On 10 November 2003, he marked the same response on his entry medical exam at the New Orleans MEPS. According to regulations, an enlistment, induction, or period of service is fraudulent when there has been deliberate material misrepresentation, including the omission or concealment of facts that, if known at the time, would have reasonably been expected to preclude, postpone, or otherwise affect the service member’s eligibility for enlistment or induction. The Applicant’s service and medical record document that the epilepsy existed prior to service, and the Applicant’s failure to disclose it could have resulted in charges for Article 83 (Fraudulent enlistment, appointment, or separation). The command opted instead for the more lenient administrative discharge. Although the Applicant may feel that the epilepsy was the underlying cause of his misconduct, 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. 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. In this case, the NDRB does not consider the circumstances surrounding the Applicant’s stated condition or diagnosis to be of sufficient nature to excuse the Applicant’s misconduct. Relief denied.

Issue 2: (Decisional) (Propriety) RELIEF NOT WARRANTED. The Applicant contends that he was being processed for medical separation prior to separation proceedings for disciplinary actions and that the medical proceedings should have taken precedence. The Applicant also provided a personal statement, medical documentation, and eight letters of reference to document that he is doing well in college post-service. Department of Defense regulations provide that disciplinary separations supersede disability separations. 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. The statement and letters of reference provided by the Applicant form a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review or can determine if post-service accomplishments help demonstrate in-service misconduct was an aberration and not indicative of the member’s overall character. 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, medical and service record entries, and discharge process, the Board found the discharge was proper and equitable. 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 his 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