ex-, USMC

Current Discharge and Applicant’s Request

Applicant’s Request:     Characterization change to:
         Narrative Reason change to:
         Reentry Code change to: NONE REQUESTED

Summary of Service

Prior Service:
Inactive:        USMCR (DEP)      20060616 - 20070312     Active: 

Period of Service Under Review:
Date of Current Enlistment: 20070313    Age at Enlistment:
Period of Enlistment: Years Months
Date of Discharge: 20100902     Highest Rank:
Length of Service: Year(s) Month(s) 20 Day(s)
Education Level:        AFQT: 64
MOS: 0311
Proficiency/Conduct Marks (# of occasions): () / ()   Fitness Reports:

Awards and Decorations (per DD 214):     Rifle ACM MM

Periods of UA/CONF:

NJP:    CC: NONE         SPCM: NONE

SCM:

- 20100626:      Article Disrespectful language towards NCO.
         Article 2 Specifications
         Specification 1: Failed to obey order MCO 1700.28 in Helmand Province
         Specification 2: Failed to obey lawful order issued by SNCO in Helmand Province
         Article 108 (Wrongful disposition of military property)
         Article 2 Specifications
         Specification 1: Unlawfully struck LCpl in Helmand Province
         Specification 2: Unlawfully struck PFC in Helmand Province
         Article 2 Specifications
         Specification 1: Communicated a threat to PFC in Helmand Province
         Specification 2: Was disrespectful towards two sentinels or lookouts in Helmand Province
         Sentence: 30 DAYS HARD LABOR
         CA: Approved and ordered executed. Hard Labor suspended for a period of 6 months from the date of trial.

Retention Warning Counseling:

- 20100416:      For Failure to obey a regulaton. On 20100412 observed by Company First Sergeant wearing a bracelet while dressed in the Marine Corps Combat Utility Uniform.

- 20100626:      For Summary Court Martial for violation of: Article 91, Article 92x2, Article 108, Article 128x2, Article 134x2.

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 .

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

Applicant’s Issues

1.       The Applicant contends his discharge is improper because he was not provided with proper treatment for post-traumatic stress disorder (PTSD) prior to his discharge.
2.       The Applicant contends his discharge is inequitable because the Separation Authority did not account for PTSD as mitigation in the Applicant’s misconduct.

Decision


Date: 20150820           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 warnings; and for of the UCMJ: Article (Insubordinate conduct towards warrant, noncommissioned, or petty officer), Article 92 (Failure to obey order or regulation, 2 specifications), Article 108 (Wrongful disposition of military property), Article 128 (Assault, 2 specifications), and Article 134 (General article, 1 specification of communicating a threat, and 1 specification of disrespect towards a sentinel). Based on the offense(s) committed by the Applicant, command administratively processed for separation. When notified of administrative separation processing using the procedure, the Applicant rights to consult with a qualified counsel, and submit a written statement, but waived his right to request an administrative board.

The Applicant stated that he was diagnosed with PTSD related to his combat service in Iraq, and Afghanistan. The Applicant’s service record documents completion of a deployment to Iraq from July 2008 to February 2009, and a deployment to Afghanistan from March to August 2010, conducting combat operations in support of Operation IRAQI FREEDOM, and Operation ENDURING FREEDOM. 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.

: (Decisional) () . The Applicant contends his discharge is improper because he was not provided with proper treatment for post-traumatic stress disorder (PTSD) prior to his discharge. The Applicant’s record shows that he was screened by military mental health provider in June 2009 following his deployment to Iraq with no subsequent mental health referrals made. The Applicant next began mental health counseling in July 2010 while deployed to Afghanistan and following his SCM in June 2010. The Psychiatrist noted that the Applicant had homicidal fantasies directed towards specific members of his command. Early diagnosis of the Applicant was for Anxiety disorder, and the Applicant was removed from Afghanistan in August 2010. The Applicant’s mental health treatment continued in Landstuhl, Germany before he was flown back to Camp Lejeune for administrative separation. The Applicant was treated by mental health at Camp Lejeune while awaiting his discharge and his diagnosis was adjusted to Antisocial Personality disorder. The Applicant was apprehended by military police at Camp Lejeune after he was reported making threats to mental health personnel by saying: “I can go get a gun and mow down everyone in here.” Although the Applicant may feel he was not provided proper medical care prior to his discharge, the Applicant’s record shows otherwise. In addition, regulations stipulate that administrative discharge for misconduct takes precedence over medical discharge. The NDRB determined that the Applicant’s discharge is proper as issued. Relief denied.

: (Decisional) () . The Applicant contends his discharge is inequitable because the Separation Authority did not account for PTSD as mitigation in the Applicant’s misconduct. The Applicant was deployed to Afghanistan when a command investigation determined he had committed serious offenses in violation of the UCMJ. The Applicant’s command referred charges against him to a special court-martial (SPCM); however, the Applicant voluntarily requested to plead guilty to charges at a lesser SCM, and accept an administrative separation with Under Other Than Honorable Conditions discharge in order to avoid a possible punitive discharge at SPCM. Prior to the Applicant’s SCM, he was not being treated for a mental health condition. After the Applicant’s SCM he sought counseling for symptoms of depression and anxiety from the Combat Stress Unit at Camp Leatherneck in Helmond, Afghanistan. During subsequent mental health treatment prior to administrative separation, the Applicant was diagnosed with Antisocial Personality disorder; and not PTSD. Mental health authorities were in contact with the Applicant’s command; however, the Applicant was determined mentally capable to distinguish right from wrong and accountable for his actions. The Applicant pleaded guilty to misconduct at a SCM and his discharge with Under Other Than Honorable Conditions discharge for Commission of a Serious Offense was warranted. 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 , 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