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)      20030204 - 20031214     Active: 

Period of Service Under Review:
Date of Current Enlistment: 20031215     Age at Enlistment:
Period of Enlistment: Years Months
Date of Discharge: 20080819      Highest Rank:
Length of Service: Year(s) Month(s) 04 Day(s)
Education Level:         AFQT: 32
MOS: 0331
Proficiency/Conduct Marks (# of occasions): () / ()   Fitness Reports:

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

NJP:

- 20041002:      Article (Larceny; On or about 14 Sep 2004 did steal two compact disc from the PX.
         Awarded: Suspended:

- 20050222:      Article (Failure to obey an order or regulation; having knowledge of lawful orders issued by the chain of command not to bring CD players or magazines on post, an order which it was his duty to obey, did on or about 31 Jan 2005, fail to obey the same.)
         Article (Misbehavior of sentinel or lookout. On or about 31 January 2005, sleep while on post.)
         Awarded: Suspended:

- 20060514:      Article (Disrespect toward a superior commissioned officer; ON or about 1230, 1 May 2006, did not acknowledge a superior commissioned officer while speaking to the commissioned officer with a toothpick in his mouth. SNM was being told to put his cover on when outdoors. SNM demeanor and use of language was very disrespectful toward the superior commissioned officer.)
         Article (Misbehavior of sentinel or lookout. On or about 0300, 4 May 2006, in a time of war being posted as a sentinel for area observation was found reading a magazine instead of scanning the area for enemy activity.)
         Awarded: Suspended:




- 20060928:      Article (Absence without leave; On 28 Aug 2006 SNM was not present for formation at 0730. SNM was informed by his chain of command to be in formation at 0730 and did not arrive until about 0930.)
         Article 91( On or about 0500 6 Aug 2006, was disrespectful in deportment toward a senior staff noncommissioned officer then known by SNM to be the First Sergeant. SNM was very disrespectful in his mannerism and demeanor.)
         Awarded: Suspended:

SCM:

SPCM:

- 20070426:      Article (Wrongful use, possession, etc., of controlled substances)
         Sentence:

CC:

Retention Warning Counseling:

- 20051129:      For a negligent discharge of a crew served weapon. SNM was counseled this date for his active role in discharging blank rounds from the 50-caliber machine gun while conduct a training evolution.

- 20070125:      For your pattern of misconduct. After extensive counseling through your chain of command, medical officers, and legal counsel, you have not corrected your deficiencies as it pertains to good order and discipline.



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 1105, DISCHARGE ADJUDGED BY SENTENCE OF COURT-MARTIAL , 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 IV, Para 403m(7)(a), Presumption Concerning Court-Martial Specifications .

C. 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 requested clemency on the basis that at the crime he committed the act of misconduct for which he was discharged, he was suffering from combat-related PTSD and TBI.
2. The Applicant requested clemency on the basis that his post-service achievements are indicative of his true character.

Decision


Date: 2015402            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 in Iraq. The Applicant’s service record documents completion of a deployment to Iraq from January to August 2006, conducting combat service support operations in support of Operation IRAQI 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 NDRB presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. With respect to a discharge adjudged by a court-martial case, 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. In response to the Applicant’s clemency request, relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts. The Applicant’s case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency. The Board did complete a thorough review of the circumstances that led to his discharge and the discharge process to ensure his discharge met the pertinent standards of equity and propriety. The Applicant’s record of service included 6105 counseling warnings, for of the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave, 1 specification), Article 89 (Disrespect toward a superior commissioned officer, 1 specification), Article 91 (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer, 1 specification), Article 92 (Failure to obey an order or regulation, 1 specification), Article 113 (Misbehavior of sentinel or lookout, 2 specifications), and Article 121 (Larceny or wrongful appropriation); and for of the UCMJ: Article 112a (Wrongful use, possession, etc., of controlled substances, 1 specification). The Applicant also had a pre-service drug waiver for using marijuana prior to entering the Marine Corps, and acknowledged complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 28 JANUARY 2003. The Applicant’s service record documents a punitive conviction and punishment, as adjudged by a Special Court-Martial, on 26 April 2007. A qualified legal defense counsel represented the Applicant throughout the trial by Special Court-Martial process. Given the facts of the case, the Special Court-Martial awarded the Applicant a Bad Conduct Discharge, forfeiture of $867 pay per month for three months, reduction in rank to E-1, and confinement for a period of 90 days. The convening authority approved the sentence as adjudged on 27 July 2007. The case was submitted for review to the U.S. Navy-Marine Corps Court of Criminal Appeals without assignments of error; it was reviewed and the findings were affirmed on 28 February 2008.






: (Decisional) () . The Applicant requested clemency on the basis that at the crime he committed the act of misconduct for which he was discharged, he was suffering from combat-related PTSD and TBI. The Applicant bears the burden of the presentation of substantial and credible evidence to support his issue. Although there is documentation of the Applicant’s diagnosis of PTSD in the record, there is no evidence to support the claim that his misconduct was due to complications from his diagnosis of PTSD. The Applicant was found guilty at four different NJPs from 20041002 - 20060926. Two of the NJPs were before his second deployment to Iraq and two were during his second deployment to Iraq. At no time during any of these incidents does the record indicate that his NJP misconduct was due to complication from his PTSD symptoms. The Applicant also had a SPCM on 20070426 due to violation of Artilce 112a (Wrongful use, possession, etc., of controlled substances) as a result of a positive urinalysis for the use of MDMA (ecstasy) on or about 20061114. Furthermore, although it was not admissible at the court martial, the Applicant had another positive urinalysis for marijuana in February 2007. The Applicant was represented by counsel for the entirety of the SPCM and was found guilty and sentenced accordingly. The Applicant’s diagnosis of PTSD was known while he was in-service and he was receiving treatment from qualified medical professional. Furthermore, he was given ample opportunity to argue mitigating and extenuating circumstances at the court martial, as well as through the appellate process with no relief given. The Applicant has not submitted any new evidence that acts to reduce the severity of the sentence imposed and therefore, the NDRB found that any relief would be inappropriate. Clemency denied

: (Decisional) () . The Applicant requested clemency on the basis that his post-service achievements are indicative of his true character. 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, an unofficial transcript from Los Angeles Trad Tech College, a letter of admission from Morehouse College, a record of no arrest from the Hercules Police department, and several character references. 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 BAD CONDUCT DISCHARGE 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