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)      20040317 - 20040427     Active: 

Period of Service Under Review:
Date of Current Enlistment: 20040428     Age at Enlistment:
Period of Enlistment: Years Months
Date of Discharge: 20091230      Highest Rank:
Length of Service: Year(s) Month(s) 26 Day(s)
Education Level:         AFQT: 78
MOS: 1833
Proficiency/Conduct Marks (# of occasions): NFIR / NFIR         Fitness Reports:

Awards and Decorations (per DD 214):     Rifle KDSM COC

NJP:

- 20070411:      Article Displayed items on gear list that were not his own but he stated they were his.
         Article 108 (Loss of government property) Failed to maintain accountability of gear he signed for at the CIF.
         Awarded: Suspended:

SCM:

SPCM:

- 20090305:      Article On or about 20080812 to 20090118.
         Article 112a (Wrongful use, possession, etc., of controlled substances)Marijuana
         Sentence: CONF 60 days
         CA: Approved except for FOP.

CC:

Retention Warning Counseling:

- 20070329:      Failure to register vehicle and failure to appear before base magistrate.



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 contends an upgrade would help him to take care of his family and better his life.
2. The Applicant contends his youth, family problems and mental history are contributing factors to his misconduct.
3. The Applicant contends that following his deployment he was not the same and that contributed to his misconduct.

Decision

Date: 20150507           Location: Washington D.C.        Representation:

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall .
By a vote of the Reenlistment Code shall .

Discussion

As a result of the Applicant’s claim that a MENTAL HEALTH DIAGNOSIS impacted their 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 documents the Applicant was diagnosed with a mental health disorder while serving in the armed forces.

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. 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 Applicant’s record of service included 6105 counseling warnings, for of the Uniform Code of Military Justice (UCMJ): Article 92 (Failure to obey order or regulation), and Article 108 (Loss of government property); and for of the UCMJ: Article 86 (Absence without leave), and Article 112a (Wrongful use, possession, etc., of controlled substances, Marijuana). The Applicant’s service record documents a punitive conviction and punishment, as adjudged by a Special Court-Martial, on 23 July 2009. 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 pay, and confinement for 60 Days. The Convening Authority approved the sentence except for the adjudged forfeitures. 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 23 December 2009.

: (Nondecisional) The Applicant contends an upgrade would help him to take care of his family and better his life. 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.

: (Decisional) () . The Applicant contends his youth, family problems and mental history are contributing factors to his misconduct. The Applicant did not submit any documentation to rebut any presumption of regularity in governmental affairs by the NDRB. 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 that following his deployment he was not the same and that contributed to his misconduct. The Applicant did not provide any evidence of a diagnosis of a MENTAL HEALTH DIAGNOSIS from any other private mental health treatment provider to document his claim. . The NDRB requested the Applicant’s medical treatment records, but the VA was unable to locate them. Futhermore, the NDRB found no evidence in the record of any indications of, or diagnosis for a MENTAL HEALTH DIAGNOSIS. Additionally, there is no evidence in either the Applicant’s service record, or the documentation he provided, that demonstrated any problems or symptoms manifesting during his enlistment from his service in Iraq. The Applicant’s record does not document any attempts to seek help for any mental health symptoms while in service. Lacking any evidence of a MENTAL HEALTH DIAGNOSIS, the NDRB is unable to establish this contention as a basis for mitigation or consideration as an extenuating circumstance. 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