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)      20061005 - 20061016     Active:  USAR     20060308 – 20060926 UNCH
                                    USMC     20061017 – 20100901 HON
Period of Service Under Review:
Date of Current Enlistment: 20100902    Age at Enlistment:
Period of Enlistment: Years Months
Date of Discharge: 20140816     Highest Rank:
Length of Service: Year(s) Month(s) 15 Day(s)
Education Level:        AFQT: 44
MOS: 3043/0531
Proficiency/Conduct Marks (# of occasions): NFIR        Fitness Reports:

Awards and Decorations (per DD 214):     Rifle Pistol (2) (2) ACM(w/ 2 stars) (w/ 2 stars) (2) CoA LoA

Periods of UA/CONF:

NJP:

SCM:

- 20130613:      Article 108 (Military property of the United States – sale, loss, damage, destruction, or wrongful disposition) 2 specifications
         Specification 1: Without proper authority, sell to Pawn Max, 48 entrenching “E” tools
         Specification 2: Without proper authority, sell to Old South Pawn, one tool box containing SK tools
         Article 121 (Larceny and wrongful appropriation) 2 specifications
         Specification 1: Steal 48 entrenching “E” tools
         Specification 2: Steal one tool box containing SK tools
         Sentence:

SPCM:

CC:

Retention Warning Counseling:

- 20130613:      For your violations of Articles 108 and 121.

- 20131022:      For having the Warner Robbins Police Department dispatched to your resident due to you having a knife and threatening to kill yourself and others.


Administrative Corrections to the Applicant’s DD 214

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

         Block 4a, Grade, Rate, or Rank, should read: “LCPL”
Block 4b, Pay Grade, should read: “E3”
“CONTINUOUS HONORABLE ACTIVE SERVICE FROM 061017 UNTIL 100901”
         “MISCONDUCT”

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. Paragraph 6210, MISCONDUCT of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), 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 .

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, Articles 108 and 121.

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

Applicant’s Issues

1.       The Applicant contends his rights were violated.
2.       The Applicant contends he was mentally incompetent and his statements should not have been used against him.
3.       The Applicant contends his administrative separation was double jeopardy.
4.       The Applicant contends PTSD, depression, and anxiety mitigate his misconduct.

Decision


Date: 20150430           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. The Applicant’s service record documents completion of deployments to Iraq from September 2008 to April 2009 and Afghanistan from April to November 2011, conducting combat service support operations in support of Operation IRAQI FREEDOM and Operation ENDURING 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 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 6105 counseling warnings and for of the UCMJ: Article 108 (Military property of the United States – sale, loss, damage, destruction, or wrongful disposition, 2 specifications) and Article 121 (Larceny and wrongful appropriation, 2 specifications). Based on the offenses committed by the Applicant, command notified him that his command was prepared to refer the charges to special court-martial. However, his command was willing to dispose of the allegations at summary court-martial if the Applicant agreed to plead guilty at summary court-martial and waive his administrative board. Additionally, the Applicant was advised that he should consult defense counsel prior to any agreement for disposition. On 15 May 2013, the Applicant signed and acknowledged that he had been fully advised by defense counsel and agreed to the disposition agreement.

: (Decisional) () . The Applicant contends his rights were violated. The Applicant further contends he was mentally incompetent and his statements should not have been used against him. 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 evidence provided by the Applicant does not demonstrate that his rights were violated or that he was mentally incompetent. The record clearly shows the Applicant signed a disposition agreement to plead guilty at SCM and waive his administrative board in order to avoid a special court-martial where he would be facing a punitive discharge and/or possible confinement. Additionally, the record shows that he was advised that he should consult defense counsel prior to any agreement for disposition and that he had actually been fully advised by defense counsel. Therefore, the NDRB must presume regularity in governmental affairs in that the Separation Authority and Staff Judge Advocate review of the discharge package ensured that the Applicant was competent and was afforded all of his administrative rights pursuant to the separation process. Relief denied.





: (Decisional) () . The Applicant contends his administrative separation was double jeopardy. Administrative discharge processing is a separate and distinct process from punitive proceedings such as NJP or court-martial. Furthermore, administrative discharge processing is administrative in nature and not considered a form of punishment. Additionally, the record shows that under the advice of counsel the Applicant signed a disposition agreement to plead guilty at SCM and to waive his administrative board. As such, the Applicant’s contention that he was punished twice for the same misconduct is erroneous. Relief denied.

4: (Decisional) () . The Applicant contends PTSD, depression, and anxiety mitigate his misconduct. The Applicant’s in-service conduct included one SCM which was a willful failure to meet the requirements of his contract honorably. The Applicant’s official military service record annotates that he had a diagnosis of PTSD. However, the Separating Authority determined it was not considered to be a contributing factor. Likewise, 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. Stealing and selling military property on multiple occasions were all conscious decisions to violate the tenants of honorable and faithful service. The evidence of record did not show that the PTSD or the Applicant’s other mental health issues were sufficient mitigating factors to excuse the Applicant’s conduct or accountability concerning his actions. After an exhaustive review, the NDRB determined that PTSD and the Applicant’s other mental health issues do not mitigate the Applicant’s misconduct. 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 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