ex-, USMCR

Current Discharge and Applicant’s Request

Applicant’s Request:     Characterization change to:
         Narrative Reason change to: SECRETARIAL AUTHORITY
        

Summary of Service

Prior Service:
Inactive:        NONE              Active: 

Period of Service Under Review:
Date of Current Enlistment: 19980417     Age at Enlistment:
Period of Enlistment: Years Months
Date of Discharge: 20060324      Highest Rank:
Length of Service:
Inactive: Year(s) Month(s) 08 Day(s)
Active: Year(s) Month(s) 19 Day(s)
Education Level:         AFQT: 32
MOS: 3361
Fitness Reports:

Awards and Decorations (per DD 214):     Rifle AFRM (w /”M” device)

Periods of UA/CONF:

NJP: SCM: SPCM: CC: Retention Warning Counseling:


NDRB Documentary Review Conducted (date):        20071120
NDRB Documentary Review Docket Number:   MD07-00653
NDRB Documentary Review Findings:                 Proper as issued and that no change is warranted.




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, Article 107, 121, and 134.

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

Applicant’s Issues

1.       The Applicant requests a change in his reentry code to RE-1.
2. The Applicant contends that his discharge was improper because of a material error of fact regarding the circumstances that led to the Applicant’s discharge.
3. The Applicant contends that his discharge was improper because he did not receive proper notification of a pending administrative separation.
4. The Applicant contends that his post service conduct is worthy of consideration for an upgrade.
5. The Applicant states that he has a post-service diagnosis of Post-Traumatic Stress Disorder (PTSD).

Decision


Date: 20150916           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 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 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 no 6105 counseling warnings and no nonjudicial punishments or courts-martial. However, the Applicant did have an investigation from the New York Police Department (NYPD) for misappropriation of time that required the Applicant to pay restitution of approximately $1,171.87. Based on the offense(s) committed by the Applicant, command administratively processed for separation. When notified of administrative separation processing using the procedure by mail, the Applicant’s notification was returned after three attempts from the post office to deliver it; therefore, he ultimately rights to consult with a qualified counsel, submit a written statement, and request an administrative board.

: (Nondecisional) The Applicant requests a change in his reentry code to RE-1. 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.

: (Decisional) () . The Applicant contends that his discharge was improper because of a material error of fact regarding the circumstances that led to the Applicant’s discharge. A Marine may be processed for separation for the commission of a serious military or civilian offense under the following circumstances:
(1) The specific circumstances of the offense warrant separation; and (2) A punitive discharge would be authorized for the same or a closely related offense under the UCMJ. Furthermore, a military or civilian conviction is not required for discharge under this provision. The evidence submitted to the NDRB shows that the Applicant was investigated by the NYPD for misappropriation of time that required the Applicant to pay restitution of approximately $1,171.87. During the times in question as evident by the investigation, the Applicant was in the Individual Ready Reserve (IRR) and had no obligation to be an active drilling reservist. The NDRB found that there were no mitigating or extenuating circumstances submitted as evidence, or given as oral testimony by the Applicant, to show the NYPD or the Marine Corps committed error. If the Applicant’s use of NYPD working-hours-time had been adjudicated by the Marine Corps, the Applicant could have faced a punitive discharge for a violation of UCMJ Article 107 (False official statement), Article 121 (Larceny or wrongful appropriation), or Article 134 (General article – false pretenses, obtaining services under). After an exhaustive review of the record, the Board found that a preponderance of the evidence reviewed supports the conclusion that the Applicant committed a serious offense, that separation from the Marine Corps was appropriate, and that an Under Other Than Honorable Conditions discharge was warranted. Relief denied.

: (Decisional) () . The Applicant contends that his discharge was improper because he did not receive proper notification of a pending administrative separation. The NDRB, under its responsibility to examine the propriety 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 governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The record of service shows evidence that the Applicant’s Reserve Unit mailed his notification of administrative discharge on 20060208 to the address that they had on file and it was returned after the third delivery attempt on 20060302. Based on the Applicant’s oral testimony during the personal hearing, the NDRB acknowledges the Applicant changed his physical address during the time that the unit attempted to notify him of administrative separation. However, it was the Applicant’s responsibility as a Reservist, to ensure his Reserve Unit had an accurate and current mailing address. Further, the Applicant did not submit any substantial or credible evidence to show that the Marine Corps committed any error regarding his notification of discharge. Thus, the NDRB determined that there is insufficient evidence of impropriety by the Applicant’s Reserve Unit. Relief denied.

: (Decisional) () . The Applicant contends that his post service conduct is worthy of consideration for an upgrade. 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, birth certificates for his two children, a background check showing no criminal activity, a practical nurse certification, an associates in arts degree, numerous job performance appraisal sheets from the Winston-Salem Police deparment, as well as other certificates and awards. 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. The Board determined that the combination of the evidence submitted and the oral testimony during the personal hearing did 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.

Issue 5: (Decisional) () . The Applicant states that he has a post-service diagnosis of PTSD. Although the Applicant provided conflicting testimony during his personal hearing that his post-service diagnosis of PTSD was not a mitigating factor to his misconduct, the NDRB conducted a thorough review of the record and included a psychiatrist as a board member during the personal hearing to examine the facts and determine if there was any mitigation regarding the Applicant’s in-service misconduct. Although the Applicant initially claimed PTSD was the underlying cause of his misconduct, the record reflects willful misconduct that demonstrated he was unfit for further service. The evidence of record did not show that PTSD was a sufficient mitigating factor to excuse the Applicant’s conduct or accountability concerning his actions. After an exhaustive review, the NDRB determined that PTSD did 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 . The Applicant is not eligible for further reviews by the NDRB. The Applicant may petition the Board for Correction of Naval Records, 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 for further review using DD Form 149. Their website can be found at http://www.donhq.navy.mil/bcnr/bcnr.htm . 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