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)      20000509 - 20001113     Active:  20041002 - 20071015
                                    20071016 - 20120131
Period of Service Under Review:
Date of Appointment: 20120201    Age:
Years Contracted: Indefinite
Date of Discharge: 20131213      Highest Rank: W1
Length of Service: Year(s) Month(s) 13 Day(s)
Education Level:         AFQT: 54
Officer’s Fitness reports: Available

Awards and Decorations (per DD 214):     Rifle Pistol (3) (2)

Periods of UA/CONF:

NJP:

- 20130722:      Article 2 specifications
         Specification 1: Wrongful sexual activity
         Specification 2: Sexual harassment
         Article (Other sexual misconduct; Indecent exposure)
         Article (General article – Disorderly conduct)
         Awarded: Suspended:

SCM:

SPCM:

CIVIL ARREST:

- 20120505:      Charges: Driving under the influence (DUI) of alcohol

CC:

- 20120906:      Offense: First Offense DUI
         Sentence: 60 days incarceration (56 days suspended), 1 year suspension of driver’s license, 3 years unsupervised probation, $526.00 in fines and court costs, and required to complete the Virginia Alcohol Safety Action Program.

Retention Warning Counseling:

Administrative Corrections to the Applicant’s DD 214

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

         “SECNAVINST ”
         “HKQ1”

The NDRB will recommend to the Commandant of the Marine Corps 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. Secretary of the Navy Instruction 1920.6C (ADMINISTRATIVE SEPARATION OF OFFICERS), effective 15 December 2005 until Present, establishes policies, standards and procedures for the administrative separation of Navy and Marine Corps officers from the naval service in accordance with Title 10, United States Code and DoD Directive 1332.30 of 14 March 1997.

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 92, 120c, and 134.

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

Applicant’s Issues

1.       The Applicant contends that his discharge is improper because the underlying allegations leading to his NJP and subsequent discharge were untrue.
2. The Applicant contends that his diagnosis of PTSD was erroneously not taken into account during the discharge process.
3.       The Applicant contends that his discharge is inequitable because he had over 11 years of honorable service, an outstanding record, and outstanding post-service conduct.

Decision


Date: 2015319            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 official record does document a finding of PTSD based on a screening conducted on 20130320.

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 Uniform Code of Military Justice (UCMJ): Article 92 (Failure to obey an order or regulation, 2 specifications), Article 120c (Other sexual misconduct, 1 specification), and Article 134 (General article, 1 specification). Based on the offense(s) committed and further pending administrative processing, the Applicant chose to submit a request to waive his Board of Inquiry on a letter dated 20130801. His request was approved by the Commandant of the Marine Corps on 20131125 and he was separated due to misconduct (serious offense) with an Under Other Than Honorable characterization of service.

: (Decisional) () . The Applicant contends that his discharge is improper because the underlying allegations leading to his NJP and subsequent discharge were untrue. 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 propriety grounds if the Applicant’s discharge was found to be conducted not in accordance to the guidelines and instructions 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 Navy. On 20121010, charges were preferred against the Applicant for violations of Articles 92, 120c, and 134. On 20121019, the Applicant submitted a request for resignation in lieu of trial by court-martial. This request was denied and the Applicant was taken to NJP on 20130726. Based on the evidence from a thorough investigation by the command and NCIS, as well as the admission of guilt to the charges from the Applicant, he was found guilty of all charges. The Applicant did not choose to submit an appeal to the finding of guilty. If the Applicant felt that allegations against him were untrue, he could have pled innocent at NJP and also contested the findings through the appeals process after NJP. A preponderance of the evidence reviewed supports the conclusion that he was afforded all of his rights and given ample opportunity to prove his innocence. The NDRB did not find any impropriety in the discharge process and the Applicant did not submit any new evidence to show any impropriety existed. Relief denied.

: (Decisional) () . The Applicant contends that his diagnosis of PTSD was erroneously not taken into account during the discharge process. In determining discharge characterization of service, the Applicant’s conduct forms the primary basis for consideration. The Applicant’s in-service conduct included a nonjudicial punishments and a civilian conviction for DUI. The Applicant’s official military diagnosis of PTSD is documented from a competent medical officer at Naval Health Clinic Quanitco, Virginia, on 20130320. On the Report of Nonjudicial Punishment and Board of Inquiry Waiver endorsed by the Commandant of the Marine Corps on 20131125, it erroneously states in reference to the 20130320 findings that the Applicant “was screened in accordance with MARADMIN 328/10 and found not to have PTSD or TBI.” However, the NDRB does agree that this statement was submitted with error but does not believe that this oversight is grounds for relief. The same piece of documentation stating that the Applicant does have PTSD goes further to state that the presence of PTSD “in this service member may not reasonably be considered to be a contributing factor in the behavior or activities which now lead to the recommendation for involuntary separation.” The NDRB found that the evidence submitted by the Applicant in conjunction with the official record gives clear indication that it was the Applicant own willful neglect that led to his discharge and no mitigation should be given due to his diagnosis of PTSD. Relief denied

: (Decisional) () . The Applicant contends that his discharge is inequitable because he had over 11 years of honorable service, an outstanding record, and outstanding post-service conduct. The NDRB did find that the Applicant completed 11 years of Honorable service prior to receiving his commission. However, he did receive a DD214 for that period of service awarding him with an Honorable characterization of service and that period of service is not under review. The Applicant’s current period of service under review started on 20120201. During this time period, the Applicant had a DUI conviction as well as being found guilty at NJP. Furthermore, the Applicant waived his rights to go before a Board of Inquiry and present matters of mitigation to potentially receive a more favorable characterization of service.

The NDRB is authorized to consider post-service factors in the re-characterization of a discharge. However, there is no law, or regulation, that provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to exist during the period of enlistment in question. Besides the Applicant’s statement on the DD Form 293 and four character reference letters, he failed to provide any documentary evidence on his behalf for post-service consideration. The Applicant could have provided documentation as detailed in the Post-Service Conduct paragraph in the Addendum with the recognition that 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. Without post-service documentary evidence, the Board determined the awarded characterization of service shall remain Under Other Than Honorable Conditions. 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: 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