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)      20080215 - 20080309     Active: 

Period of Service Under Review:
Date of Current Enlistment: 20080310    Age at Enlistment:
Period of Enlistment: Years Months
Date of Discharge: 20081201     Highest Rank:
Length of Service: Year(s) Month(s) 22 Day(s)
Education Level:        AFQT: 70
MOS: NONE
Proficiency/Conduct Marks (# of occasions): () / 2.1 ()        Fitness Reports:

Awards and Decorations (per DD 214):     Rifle

NJP:

SCM:

- 20080915:      Article (Absence without leave; 20080706-20080820, 45 days)
         Sentence: (20080915-20081008, 24 days)

SPCM:

CC:

Retention Warning Counseling:

NDRB Documentary Review Conducted (date):        20140807
NDRB Documentary Review Docket Number:   MD14-00622
NDRB Documentary Review Findings:                 Proper as issued and that no change is warranted.

Administrative Corrections to the Applicant’s DD 214

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

         “00 06 13”
         “”
         “MISCONDUCT”
         “(45) 20080706-20080819, (24) 20080915-20081008”

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:        

Types of Witnesses Who Testified

         Expert:           Character:      

Pertinent Regulation/Law

A. The Marine Corps Separation and Retirement Manual, (MCO P1900.16F, effective 1 September 2001 until Present, Paragraph 6210, MISCONDUCT.

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 86.

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.
2.       The Applicant contends he enlisted without the proper mindset, realized he was not meant for the Marine Corps, and went into an unauthorized absence status to clear his head and determine his next steps.
3.       The Applicant contends his mental health issues including a suicide attempt and a family history of anxiety were mitigating factors in his misconduct.
4.       The Applicant contends his post-service conduct warrants an upgrade.

Decision


Date: 20150610           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 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 for of the UCMJ: Article 86 (Absence without leave; 20080706-20080820, 45 days). 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.

As a result of the Applicant’s claim that mental health issues, including a suicide attempt and a family history of anxiety, impacted his discharge and in accordance with U.S. Code, Title X, Section 1553 (e)(2), the Naval Discharge Review Board included a member who is a physician, clinical psychologist, or psychiatrist. The Applicant’s service record fails to document that the Applicant was diagnosed with a mental health disorder while serving in the armed forces. Documentation provided by the Applicant concerning post-service and unreported in-service civilian care is also void of any diagnosis of mental health issues.


: (Nondecisional) The Applicant would like to improve his employment opportunities. The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities. Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge. Furthermore, due to related statements by the Applicant during his oral testimony, the NDRB further emphasizes that it has no authority to overturn or suppress any court-martial convictions for any reason, including the impact on future employment opportunities.

: (Decisional) () . The Applicant contends he enlisted without the proper mindset, realized he was not meant for the Marine Corps, and went into an unauthorized absence status to clear his head and determine his next steps. While the Applicant may have felt like joining the Marine Corps was a mistake upon reporting to training at the School of Infantry, this does not mitigate his disobedience of the orders and directives that regulate good order and discipline in the Armed Forces. An Under Other Than Honorable Conditions discharge is warranted when significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record. There is credible evidence in the record documenting the Applicant’s 45 days of absence without leave and subsequent conviction of such at a SCM. Additionally, the record shows that the Applicant refused to return to training after returning from his absence without leave period and requested to be discharged. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contractual obligation with the U.S. Marine Corps. Such conduct falls far short of that expected of a member of the U.S. military and does not meet the requirements for an upgrade of his characterization of service. The NDRB recognizes that serving in the military is challenging. Most servicemembers, however, serve honorably and therefore earn their Honorable discharges. In fairness to those Marines and Sailors who served honorably, Commanders and Separation Authorities are tasked to ensure that undeserving servicemembers receive no higher characterization than is due. The NDRB found the characterization of the Applicant’s discharge was equitable and consistent with the characterization of discharge given others in similar circumstances. Relief denied.

: (Decisional) () . The Applicant contends his mental health issues including a suicide attempt and a family history of anxiety were mitigating factors in his misconduct. The Applicant raised this issue during his oral testimony and noted that he concealed this information from military authorities during his entire period of enlistment. Upon the Applicant’s revelation of his mental health issues during the board, the NDRB paused the proceedings and changed the board membership to ensure compliance with U.S. Code, Title X, Section 1553 (e)(2). A review of the testimony to that point was conducted and the board reconvened with the new membership.

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 Applicant’s oral testimony consisted of statements that he got along well with authority figures in his command but that he chose not to confide in them about any of the issues he was having while undergoing training. The Applicant stated that he had personal relationship problems with his peers and that he entered into his period of unauthorized absence in order to be recycled in order to train with a new group of peers. Having been rebuked by his family for entering into an unauthorized absence status, the Applicant then testified that he decided to attempt to commit suicide. To support his oral testimony the Applicant provided excerpts of documentation surrounding his suicide attempt consisting of four pages from his involuntary emergency examination, treatment, and discharge paperwork that stated “Observed at the scene was a hose from the exhaust of his vehicle into the passenger compartment of the same. In garage has a strong odor of exhaust. [Applicant’s name] stated that he is not right in the head.” The NDRB noted that the Applicant was admitted for his attempt on 1 August 2008 and was discharged on 4 August 2008, one day prior to his being declared a deserter and 16 days before surrendering himself to his command. No mental health diagnosis, treatment regimen, list of injuries sustained, or prognosis was listed on the documentation provided by the Applicant.

Although the Applicant’s oral testimony cited a pre-enlistment family history of mental health concerns, him running away from home as a juvenile, and mentioned being terminated from employment due to interpersonal relationship issues, the NDRB found no evidence to support that he revealed such information during his enlistment process. The NDRB considered that if the Applicant’s testimony was accurate his enlistment would have been fraudulent. 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. Federal law requires all persons applying for enlistment in the military to disclose all sealed, expunged, or juvenile records during the enlistment process. Therefore, the Applicant had an obligation to truthfully and fully answer all questions regarding his prior-service history. Based on the Applicant’s failure to truthfully and fully disclose information regarding his pre-service history, the NDRB determined that his enlistment could also have been considered fraudulent based upon his oral testimony as compared to the evidence of the record.

Ultimately the NDRB did not find any reference of a mental health diagnosis in the Applicant’s service record and the Applicant did not provide any documentary evidence of a medical diagnosis by competent medical authorities to support his claim. Though the Applicant may feel that a mental health condition 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 a mental health condition was a sufficient mitigating factor to excuse the Applicant’s conduct or accountability concerning his actions. After an exhaustive review, the NDRB determined that a mental health condition did not mitigate or excuse the Applicant’s misconduct. Based on the evidence of record and the Applicant’s oral testimony, his 45 day absence without leave period was a conscious and deliberate decision to violate the tenants of honorable and faithful service. Relief denied.

4: (Decisional) () . The Applicant contends his post-service conduct warrants an upgrade. 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, financial documentation, a well-documented history of exemplary performance and accolades while attending community college and the University of Pittsburgh, stated that he performs community service as part of organizations to which he belongs at the University of Pittsburgh, and five reference letters for higher level educational institution admission. The Applicant also presented character statements from his father as a witness during his proceedings. 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 an upgrade from an unfavorable discharge 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 UNDER OTHER THAN HONORABLE CONDITIONS and the narrative reason for separation shall remain MISCONDUCT.

The Applicant is not eligible for further reviews by the NDRB. The Applicant may petition the Board for Correction of Naval Records, 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 for further review using DD Form 149. Their website can be found at http://www.donhq.navy.mil/bcnr/bcnr.htm . 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: Effective 6 February 2015, the NDRB is authorized to change a NDRB Applicant’s Reenlistment Code if related to an accompanying change in discharge characterization or narrative, but this authority is strictly limited to those cases where an applicant’s narrative reason or characterization of discharge is changed and that change warrants revision of the previously issued reenlistment code. 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