ex-, USMC

Current Discharge and Applicant’s Request

Applicant’s Request:     Characterization change to:
         Narrative Reason change to: COMPLETION OF REQUIRED ACTIVE SERVICE       
        
Summary of Service

Prior Service:
Inactive:        USMCR (DEP)      20021007 - 20030707     Active: 
                                    20030708 – 20061025: HON
                                    20061026 – 20100707: HON

Period of Service Under Review:
Date of Current Enlistment: 20100708    Age at Enlistment:
Period of Enlistment: Years Months
Date of Discharge: 20141017     Highest Rank:
Length of Service: Year(s) Month(s) 08 Day(s)
Education Level:        AFQT: 55
MOS: 1371
Proficiency/Conduct Marks (# of occasions): () / ()   Fitness Reports:

Awards and Decorations (per DD 214):     Rifle Pistol (3) (3) (2) -ISAF (4) (5) ACM LoA (5) MM (2)

Periods of UA/CONF:

NJP:

SCM:

SPCM:

CIVIL ARREST:

CC:

Retention Warning Counseling:

- 20130808:      For loss of trust and confidence in abilities to perform as a Canvassing Recruiter

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 6419, SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 18 August 1995 until 31 August 2001.

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)(b), Presumption Concerning Court-Martial Specifications .

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

Applicant’s Issues

1.       The Applicant contends his discharge is inequitable because it does not reflect his entire eleven years of service in the Marine Corps.
2.       The Applicant contends that post-traumatic disorder (PTSD) should be considered as mitigation of his misconduct.
3.       The Applicant contends he was not properly advised by his defense attorney.
4.       The Applicant contends his enlistment extension was cancelled so he should have been given a discharge for reason of Completion of Required Active Service (CRAS).

Decision


Date: 20150521           Location: Washington D.C.        Representation:

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

Discussion

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 6105 counseling warning, and was referred to a for of the UCMJ: Article 92 (Failure to obey order or regulation; hazing). The Applicant voluntarily requested an administrative separation in liue of trial by court-martial, and waived his right to an administrative separation board. The Applicant was granted his request and was discharged on 17 October 2014 with Under Other Than Honorable Conditions discharge.

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 two deployments in Iraq from September 2004 to March 2005, and from February to September 2006, conducting combat support operations in support of Operation IRAQI FREEDOM. The Applicant also completed a deployment to Afghanistan from April to October 2011, conducting combat support operations in support of Operation ENDURING FREEDOM. As a result of the Applicant's claim of PTSD, in accordance with U.S. Code, Title X, Section 1553(d)(1), the Naval Discharge Review Board reviewed 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 he did not deploy in support of a contingency operation, and so his case did not warrant an expedited review in accordance with U.S. Code, Title X, Section 1553(d)(1).

: (Decisional) () . The Applicant contends his discharge is inequitable because it does not reflect his entire eleven years of service in the Marine Corps. Block 18, “Remarks,” on the Applicant’s DD Form 214, shows that he had “Continuous Honorable Active Service from 20030708 until 20100707. The Applicant is eligible for Veterans Affairs (VA) benefits, and other veteran benefits based on this period of Honorable service. The period of service from 20100708 until 20141017 is the period that is characterized as Under Other Than Honorable Conditions for reason of separation In Lieu Of Trial by Court Martial. The Applicant’s discharge is proper and equitable as issued. Relief denied.

: (Decisional) () . The Applicant contends that post-traumatic disorder (PTSD) should be considered as mitigation of his misconduct. The Applicant submitted a letter dated 15 September 2014 from Staff Psychiatrist, Naval Hospital Beaufort South Carolina that shows he was diagnosed with Depression, and PTSD, and was under psychiatrist treatment. The letter was addressed to the Applicant’s Defense Attorney the month before the Applicant’s administrative separation. Although the Applicant’s administrative separation package is not in his record, and not available for the NDRB’s review, the NDRB concluded that the Applicant’s mental condition was known by his command, and was accounted for in deciding his characterization of service. 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 NDRB determined that insufficient evidence is available to show that the Applicant’s mental condition was mitigation for misconduct or that he should not be held accountable for his actions. Relief denied.

: (Decisional) () . The Applicant contends he was not properly advised by his defense attorney. The record shows the Applicant was not taken to court-martial but was administratively separated from the Marine Corps after requesting separation in lieu of trial by court-martial (SILT). Per regulations, to attain approval for a SILT request, service members must have been afforded the opportunity to consult with a qualified counsel and submit a written statement. They must also fully understand the elements of the offense(s) for which they were charged, and they must admit their guilt. They further certify a complete understanding of the negative consequences of their actions and that characterization of service could be Under Other Than Honorable Conditions, which might deprive them of virtually all veterans benefits based upon their current enlistment. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that the Applicant’s defense attorney did not provide him with proper legal counsel. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case. Relief denied.

4: (Decisional) () . The Applicant contends his enlistment extension was cancelled so he should have been given a discharge for reason of Completion of Required Active Service (CRAS). The Applicant was referred to a SPCM and could be held on legal hold indefinitely past his date of CRAS in order to adjudicate his misconduct and complete any punishments ordered by the court at sentencing. The Applicant then voluntarily requested administrative separation in lieu of court-martial and was granted his request by the Separation Authority/Convening Authority. The NDRB determined the Applicant’s discharge is proper and equitable as issued. 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 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