ex-, USMC

Current Discharge and Applicant’s Request

Applicant’s Request:     Characterization change to: GENERAL OR UNCHARACTERIZED
         Narrative Reason change to:
         Reentry Code change to:

Summary of Service

Prior Service:
Inactive:        USMCR (DEP)      20071011 - 20071028     Active: 

Period of Service Under Review:
Date of Current Enlistment: 20071029    Age at Enlistment:
Period of Enlistment: Years Months
Date of Discharge: 20100126     Highest Rank:
Length of Service: Year(s) Month(s) 29 Day(s)
Education Level:        AFQT: 36
MOS: 0151
Proficiency/Conduct Marks (# of occasions): () / ()   Fitness Reports:

Awards and Decorations (per DD 214):     Rifle

Periods of UA/CONF:

NJP:

- 20080826:      Article 80 (Attempts)
         Article
         Article 108 (Military property of the United States—sale, loss, damage, destruction, or wrongful disposition)
         Article
         Article
         Awarded: Suspended:

- 20080905:      Article 3 specifications
         Article
         Awarded: Suspended:

SCM:

SPCM:

- 20090210:      Article 2 specifications
         Article
         Sentence: 120 days

CC:

Retention Warning Counseling:

- 20080716:      For the following deficiencies, lack judgment, tact, integrity, bearing, courage, and loyalty. Over the past few weeks you have been counselled by your section concerning the above deficiencies. You have lied about paying for a command shirt and when confronted you lost your bearing with the situation. You have been extremely lackadaisical concerning things around you. You have disregarded authority by not doing what you have been directed to do and have been UA from your appointed place of duty. This sort of conduct and your inability to adhere to the basic leadership traits will not be tolerated. You are to immediately change your attitude and take corrective action.

- 20080826:      For my recent Battalion NJP concerning the following misconduct, specifically, violation of articles 80, 92, 108, 121, and 123 of the UCMJ in that I did on or about 28-21 July 2008, steal PFC [name redacted]’s Fort Sill Visa Debit Card and utilized it to conduct several unauthorized purchases totaling $134.30. SNM also attempt to write blank checks using PFC [name redacted]’s checking book with intent to defraud, falsely the signature of PFC [name redacted] to wit: check #532. SNM also fail to obey a lawful order given by GySgt [name redacted] and destroy computer equipment within the IPAC by snatching a computer mouse resulting in the cord snapping in half and storming out of the IPAC soon thereafter using profanity.

- 20080905:      For my recent Battalion NJP concerning the following misconduct, specifically, violation of articles 86 x 3, 92 of the UCMJ in that I did on or about 30 Aug – 2 Sept 2008, disobey a direct order by failing to check in during the prescribed times for restriction.

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 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 .

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

Applicant’s Issues

1.       The Applicant seeks enhanced employment opportunities.
2.       The Applicant implies that he would like to re-enlist.
3.       The Applicant contends he warrants a discharge upgrade as he enlisted when his civilian life was collapsing and that he had no values and no family at that time.
4.       The Applicant contends that his discharge characterization is mitigated by mental health issues that he’s been dealing with since 1996 as well as family and financial problems.
5.       The Applicant contends that he is now 27 years old, has matured, and wants to start over after having been in and out of incarceration since 2011.

Decision


Date: 20150820           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

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. 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 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, for of the Uniform Code of Military Justice (UCMJ): Article 80 (Attempts, one specification), Article 86 (Absence without leave, three specifications), Article 92 (Failure to obey order or regulation, two specifications), Article 121 (Larceny, one specification), and Article 123 (Forgery, one specification); and for of the UCMJ: Article 121 (Larceny, two specifications) and Article 128 (Assault, one specification). The Applicant entered into a Pre-Trial Agreement (PTA) on 13 January 2009 which included a sentence limitation as part of his SPCM. Based on the Applicant's conviction and sentence at a special court-martial, he was confined and separated with a Bad Conduct characterization of service. The Applicant’s court-martial findings were properly reviewed during a the appeal process and his bad conduct discharge affirmed and ordered to be executed by the Navy-Marine Corps Court of Criminal Appeals (NMCCCA) on 5 November 2009. The NMCCCA affirmed the Applicant’s sentence as approved by the convening authority. The Navy and Marine Corps Appellate Leave Activity issued Special Court-Martial Supplemental Order No. 10-0016 and ordered the execution of the Applicant’s BAD CONDUCT DISCHARGE on 25 January 2010.

As a result of the Applicant’s claim of mental health issues starting in 1996, 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 records available for review show that Applicant was not diagnosed with mental health related issues at any point, either before, during, or post-service. The Applicant’s service and medical records failed to document any mental health concerns.


: (Nondecisional) The Applicant seeks enhanced employment opportunities. The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities. Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.

: (Nondecisional) The Applicant implies that he would like to re-enlist. 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 he warrants a discharge upgrade as he enlisted when his civilian life was collapsing and that he had no values and no family at that time. While the Applicant may feel that his difficult upbringing was a contributing factor to his misconduct, it does not mitigate his disobeadience of the orders and directives that regulate good order and discipline in the Marine Corps, demonstrating that he was unsuitable for further service. Clemency denied.

4: (Decisional) () . The Applicant contends that his discharge characterization is mitigated by mental health issues that he’s been dealing with since 1996 as well as family and financial problems. The NDRB requested all records of medical treatment, both active duty and post-service, from the VA. The records received from the VA failed to document any request for evaluation, any diagnosis, or any findings of a mental health diagnosis or other mental health concerns. The NDRB noted that the DD Form 2807-1, Report of Medical History, the Applicant completed during his 2007 enlistment process failed to annotate any previous mental health issues. Moreover, the Applicant did not provide any evidence of a diagnosis of a mental health diagnosis from any other private mental health treatment provider to document his claim. The NDRB found no evidence in the record of any indications of, or diagnosis for, a mental health condition. Furthermore, the Applicant’s record does not document any attempts to seek help for any mental health symptoms while in service. Lacking any evidence of a mental health diagnosis, the NDRB is unable to establish this contention as a basis for mitigation or consideration as an extenuating circumstance. Clemency denied.

5: (Decisional) () . The Applicant contends that he is now 27 years old, has matured, and wants to start over after having been in and out of incarceration since 2011. There is no law or regulation that authorizes a discharge to be automatically upgraded after any set period of time or upon an applicant’s reaching a certain age. The NDRB does not automatically upgrade a discharge after any set period of time has elapsed since discharge or upon an applicant reaching a certain age. Additionally, while the Applicant may feel his youth and immaturity were the underlying causes of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service. The evidence of record does not demonstrate the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. The NDRB determined the Applicant’s conduct, which forms the primary basis for determining the character of his service, reflected a significant departure from the conduct expected of a servicemember and that clemency was not warranted. Clemency 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 BAD CONDUCT DISCHARGE 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 , 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