ex-Pvt, USMC

Current Discharge and Applicant’s Request

Applicant’s Request:     Characterization change to: HONORABLE OR GENERAL (UNDER HONORABLE CONDITIONS)
         Narrative Reason change to: NONE REQUESTED
        
Summary of Service

Prior Service:
Inactive:        USMCR (DEP)      20010813 - 20020114 COG         Active:  NONE

Period of Service Under Review:
Date of Current Enlistment: 20020114    Age at Enlistment: 20
Period of Enlistment: 4 Years 0 Months
Date of Discharge: 20060920     Highest Rank: LANCE CORPORAL
Length of Service: 04 Year(s) 08 Month(s) 07 Day(s)
Education Level: 12     AFQT: 46
MOS: 3521
Proficiency/Conduct Marks (# of occasions): 3.7 (7) / 3.6 (7)   Fitness Reports: NOT APPLICABLE

Awards and Decorations (per DD 214):     Rifle MM NDSM GWOTSM GWOTEM

Periods of UA: NONE
Periods of CONF: 20040911-20050417, 217 days; 20040117-20040211, 25 days

NJP: NONE

SCM: NONE

SPCM: 1

- 20040929:      Article 112a (Wrongful use, possession, etc., of controlled substances) 8 specifications:
         Specification 1: On divers occasions between 20030301 and 20031115 onboard MCAS Cherry Point, NC, SNM did wrongfully possessed marijuana.
        Specification 2: On divers occasions between 20030301 and 20031115 onboard MCAS Cherry Point, NC, SNM did wrongfully distribute.
         Specification 3: Between 20030901 and 20031124 at unknown location, SNM did wrongfully use cocaine.
         Specification 4: Between 20030316 and 20030416 at unknown location, SNM did wrongfully use cocaine.
         Specification 5: Between 20030316 and 20030416 at unknown location, SNM did wrongfully use marijuana.
         Specification 6: Between 20030316 and 20030416 onboard MCAS Cherry Point, SNM did wrongfully introduce marijuana onto an installation with the intent to distribute.    
         Specification 7: Between 20030316 and 20030416 onboard MCAS Cherry Point, SNM did wrongfully introduce cocaine onto an installation with the intent to distribute.      
         Specification 8: Between 20030702 and 20030802 at an unknown location, SNM did wrongfully use cocaine.  
         Article 121 (Larceny; wrongful appropriation; O/A 20031001 onboard MCAS Cherry Point, SNM did wrongfully appropriate a 2003 Mitsubishi Galant valued at $12,000)
         Article 134 (General article; uttering checks without maintaining sufficient funds; O/A 20031001and 20031006 onboard MCAS Cherry Point, SNM did wrongfully utter checks totaling $400 with insufficient funds.)
         Sentence: BCD CONF 9 months FOP RIR E-1 $400fine
         [On 20050415, the CA approved the sentence as adjudged. Appellate review completed 20060418.]

CC: NONE

Retention Warning Counseling: NONE

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. 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 .

D. 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 112a, Wrongful use, possession, etc., of controlled substances.

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

Applicant’s Issues

1.       The Applicant desires an upgrade for benefits and employment opportunities.
2.       The Applicant contends that his PTSD and mental illness are mitigating factors.

Decision


Date: 20150618  DOCUMENTARY REVIEW      Location: Washington D.C.        Representation: NONE

By a vote of 5-0 the Characterization shall remain BAD CONDUCT DISCHARGE .
By a vote of 5-0 the Narrative Reason shall remain COURT-MARTIAL .

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. The Board also conducted a review of the Applicant's record to see if he deployed in support of a contingency operation and was, as a consequence of that deployment, diagnosed with either PTSD or TBI. A review of his record revealed that the Applicant had deployed to Southwest Asia in support of Operation ENDURING FREEDOM from 25 April 2003 to 01 June 2003.

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 completed 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 one special court-martial (SPCM) for violations of the UCMJ: Article 112a (Wrongful use, possession, etc., of controlled substances), Article 121 (Larceny; wrongful appropriation), and Article 134 (General article; uttering checks without maintaining sufficient funds). The Applicant acknowledged his complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 01 August 2005. Based on the offenses committed by the Applicant, his command administratively processed him for separation. Based on the Article 112a violations, processing for administrative separation is mandatory. The Applicant’s service record documents a punitive conviction and punishment, as adjudged by a Special Court-Martial, on 15April 2005. 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, a fine of $400.00, reduction in paygrade to E-1, forfeiture of $787.00 pay per month for a period of nine months, and confinement for a period of nine months. The convening authority approved the sentence as adjudged on 15 April 2005. The case was submitted for review to the U.S. Navy-Marine Corps Court of Criminal Appeals where the findings were affirmed on 18 April 2006.

Issue 1: (Nondecisional) The Applicant desires an upgrade for benefits and employment opportunities. There is no requirement, or law, that grants re-characterization solely on the issue of facilitating access to VA benefits. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing educational opportunities or employment opportunities. Regulations limit the NDRB’s review solely to a determination of the propriety and the equity of a discharge. As such, this issue does not serve to provide a foundation upon which the NDRB can grant relief.

Issue 2: (Decisional) (Equity) RELIEF NOT WARRANTED. The Applicant contends that his PTSD and mental illness are mitigating factors. The government assumes 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 had deployed to Southwest Asia in support of Operation ENDURING FREEDOM from 25 April 2003 to 01 June 2003, but there was no documentation of the Applicant’s direct involvement in combat operations. The NDRB requested all records of medical treatment, both active duty and post-service, from the VA. The Applicant was diagnosed as alcohol and drug dependent on 06 May 2004. The Applicant refused substance abuse counseling and treatment on 14 April 2005. The records received from the VA failed to document any request for evaluation, any diagnosis, or any findings of PTSD nor did the Applicant provide any documentation to support his claim of mental illness or PTSD. Therefore, the evidence of record does not show that the PTSD or mental health was a mitigating factor to excuse the Applicant’s conduct or accountability concerning his actions with regard to his violations of the UCMJ.

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 NDRB found the evidence of record did not contain sufficient mitigating or extenuating factors to offset the seriousness of the offenses for which the discharge was awarded. Relief denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, medical and service record entries, and discharge process, the Board found the discharge was proper and equitable at the time of discharge. Therefore, the awarded characterization of service shall remain BAD CONDUCT DISCHARGE and the narrative reason for separation shall remain COURT-MARTIAL . The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of his 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