ex-LCpl, USMC

Current Discharge and Applicant’s Request

Applicant’s Request:     Characterization change to: GENERAL (UNDER HONORABLE CONDITIONS)
         Narrative Reason change to: REQUESTED, BUT NOT SPECIFIED

Summary of Service

Prior Service:
Inactive:        USMCR (DEP)      20050516 - 20050821 COG         Active:  USMC 20050822 - 20080703 HON
                           Active:  USMC 20080704 - 20131227 HON

Period of Service Under Review:
Date of Current Enlistment: 20131228    Age at Enlistment: 25
Period of Enlistment: 4 Years 48 Months
Date of Discharge: 20150106     Highest Rank: STAFF SERGEANT
Length of Service: 01 Year(s) 04 Month(s) 03 Day(s)
Education Level: 12     AFQT: 41
MOS: 3381
Fitness Reports: AVAILABLE

Awards and Decorations (per DD 214):     Rifle EX Pistol MM GCM (2) ICM (2 stars) NUC (5) GWOTSM MUC NDSM NATO MEDAL – ISAF AFGHANISTAN SSDR (3) NMCAM (3) ACM (1 star)
         CoC (2) MM

Periods of UA/CONF: NONE

NJP: 1

- 20140717:      Article 90 (Assaulting, willfully disobeying superior commissioned officer) 2 specifications
         Specification 1: O/A 20140630, SNM did willfully disobey Capt R_’s order to turn over his phone.
         Specification 2. O/A 20140630, SNM did willfully disobey Capt R_’s order not to leave the room.
         Article 107 (False official statements; O/A 20140630, SNM did give a false statement to Capt R_. )
         Awarded: FOP RESTR Suspended: FOP RESTR

SCM: 1

- 20141022:      Article 90 (Assaulting, willfully disobeying superior commissioned officer; On divers occasions between 20140830 and 20140901, SNM having received a lawful command for his superior commissioned officer disobeyed the same by contacting his wife.)
         Article 134 (General article) 2 specifications
Specification 1: Restriction breaking. On divers occasions between 20140830 and 20140901, SNM broke restriction to the limits of MCRD San Diego.
Specification 2: Threat communicating. O/A 20140901 at San Diego, SNM communicated threats to his wife, such conduct being to the prejudice of good order and discipline in the armed forces and of a nature to bring discredit upon the armed forces.
                  Sentence: RIR E-5 FOP


CC: NONE

Retention Warning Counseling: 3

- 20140717:      For violating Article 90 and Article 107 of the UCMJ by violating MPO.
- 20141020:      For violating Article 134 of the UCMJ by breaking restriction.
- 20141022:      For violating Article 90 and Article 134 of the UCMJ.

Administrative Corrections to the Applicant’s DD 214

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

         Block 18, Remarks, should contain the statement: “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 050822 UNTIL 131227”
         Block 28, Narrative Reason for Separation, should read: 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:        

Types of Witnesses Who Testified

         Expert:           Character:      

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 90, Assaulting or willfully disobeying superior commissioned officer and Article 134, General article.

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

Applicant’s Issues

1.       The Applicant contends that his positive service accomplishments, PTSD, the fact that he was having issues with his wife, and that he disobeyed a direct order to seeing his child should mitigate the severity of the discharge.

Decision


Date: 20150709  DOCUMENTARY REVIEW      Location: Washington D.C.        Representation: NONE

By a vote of 5-0 the Characterization shall remain UNDER OTHER THAN HONORABLE CONDITIONS .
By a vote of 5-0 the Narrative Reason shall remain MISCONDUCT.

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 in Iraq. The Applicant’s service record documents completion of a deployment at Barwanah Firm Base in support of Operation IRAQI FREEDOM and a positive diagnosis for PTSD.

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 three 6105 counseling warnings; one nonjudicial punishment (NJP) for violations of the Uniform Code of Military Justice (UCMJ): Article 90 (Assaulting, willfully disobeying superior commissioned officer) and Article 107 (False official statements); and one summary court-martial (SCM) for violations of the UCMJ: Article 90 (Assaulting, willfully disobeying superior commissioned officer) and Article 134 (General article). Based on the offenses committed by the Applicant, his command administratively processed him for separation. The NDRB did not have the Applicant’s administrative separation package to determine whether or not the Applicant waived his rights to consult with a qualified counsel, submit a written statement, and request an administrative board or a General Court-Martial Convening Authority review.

Issue 1: (Decisional) (Equity) RELIEF NOT WARRANTED. The Applicant contends that his positive service accomplishments, PTSD, the fact that he was having issues with his wife, and that he disobeyed a direct order to seeing his child should mitigate the severity of the discharge. The Applicant provided a letter from his U.S. Congressman and a copy of a request to his command for a discharge characterization of General under Honorable Conditions based on his PTSD diagnosis. The Applicant’s medical records were available on Armed Forces Health Longitudinal Technology Application (AHLTA). The Applicant had been diagnosed with PTSD on 31 July 2014, but the same Psychiatrist changed his diagnosis to Unspecified Anxiety Disorder after additional testing and evaluation on 20 November 2014. The Applicant’s record supports that the Applicant served with distinction during multiple combat deployments; however, he was found guilty of serious misconduct at NJP in July of 2014, and while still on restriction in October 2014, broke restriction on multiple occasions and willfully violated a military protective order by threating his wife resulting in a summary court martial. Although the Applicant may feel that PTSD was the underlying cause of his misconduct, the record reflects repeated willful misconduct that demonstrated he was unfit for further service. The evidence of record did not show that the PTSD was a sufficient mitigating factor to fully excuse the Applicant’s conduct or accountability concerning his actions. The command did not pursue a punitive discharge but opted instead for a more lenient administrative discharge which was appropriate considering the Applicant’s service and PTSD diagnosis. Relief denied.


The Applicant should be aware that the VA has announced special VA enrollment access for PTSD and mental health treatment to combat veterans discharged under other than dishonorable conditions. Effective Jan. 28, 2008, combat veterans discharged from active duty on or after Jan. 28, 2003 are eligible for combat veteran enhanced eligibility and enrollment placement into Priority Group 6 (unless eligible for higher enrollment Priority Group placement) for 5 years post discharge. Additionally, the VA determines the eligibility for enrollment in its programs - independent of the Applicant’s characterization of service as determined by the Marine Corps. The Applicant, as a combat veteran, is encouraged to contact his local VA affairs representative for more information and may request a review of service and determination of benefits from the VA. Alternately, he may call 1-877-222-8387 or visit the following website for more information: http://www4.va.gov/healtheligibility/Library/pubs/CombatVet/CombatVet.pdf.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, service and medical 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 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 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 , or http://www.secnav.navy.mil/mra/bcnr/Pages/default.aspx 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