ex-, USMC

Current Discharge and Applicant’s Request

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


Summary of Service

Prior Service:
Inactive:        USMCR (DEP)      20060426 - 20060912     Active:  20060913 - 20061107
         USMCR (DEP)      20070228 - 20070326

Period of Service Under Review:
Date of Current Enlistment: 20070327     Age at Enlistment:
Period of Enlistment: Years Months
Date of Discharge: 20110308      Highest Rank:
Length of Service: Year(s) Month(s) 10 Day(s)
Education Level:         AFQT: 35
MOS: 3051
Proficiency/Conduct Marks (# of occasions): /          Fitness Reports:

Awards and Decorations (per DD 214):     Rifle

Periods of UA/CONF:

NJP:

- 20100715:      Article
         Awarded: Suspended:

- 20100924:      Article 2 specifications
         Specification 1: Violating the base order for not having a valid driver’s license.
         Specification 2: Failure to register her privately owned vehicle on base.
         Awarded: Suspended:

- 20110113:      Article 91 (Insubordinate conduct toward WO, NCO or PO) 3 specifications
         Specification 1: Showed no restraint on how she was addressing the duty noncommissioned officer and her body language showed the same as she disobeyed a lawful order.
         Specification 2: Failed to obey a lawful order from a noncommissioned officer to open the restriction room door.
         Specification 3: Treat with contempt and was disrespectful in language to a noncommissioned officer, by refusing to answer his questions and turning her back on him while being addressed.
         Article 92 (Failure to obey order or regulation) 2 specifications
         Specification 1: Disobey a lawful general order by taking two pills in front of the officer of the day even when she was told to only take one as prescribed, she replied “Charge me” as she was taking her medication.
         Specification 2: Disobey a lawful general order from both the duty noncommissioned officer and the assistant duty noncommissioned officer by not unlocking or opening the restriction room door.
         Awarded: Suspended:

SCM:

SPCM:

CC:

Retention Warning Counseling:

- 20100315:      For violations of UCMJ Articles 89 and 92.

- 20100427:      For willfully disobeying an order or regulation by utilizing her cell phone without a hands free device while operating a vehicle.

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 P1900.16F), 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 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 her discharge should be upgraded because she was going through the process to be medically discharged due to a diagnosis of Post-Traumatic Stress Disorder (PTSD), anxiety, depression, and borderline personality disorder.
2.       The Applicant contends her discharge was unjust because she feels that her command did not take appropriate action in dealing with her claim of rape, which led to her mental health diagnoses resulting in her misconduct.

Decision


Date: 20150924           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 Uniform Code of Military Justice (UCMJ): Article 91 (Insubordinate conduct toward WO, NCO or PO, 3 specifications) and Article 92 (Failure to obey order or regulation, 5 specifications). The NDRB did not have the Applicant’s administrative separation package to determine whether or not the Applicant waived rights to consult with a qualified counsel and submit a written statement. However, per the Applicant’s DD Form 214, the Separation Code HKA1 indicates the Applicant waived her right to an administrative board.

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 included a member who is a physician, clinical psychologist, or psychiatrist. A review of her record revealed that she did not deploy in support of a contingency operation, and so her case did not warrant an expedited review in accordance with U.S. Code, Title X, Section 1553(d)(1).

: (Decisional) () . The Applicant contends her discharge should be upgraded because she was going through the process to be medically discharged due to a diagnosis of PTSD, anxiety, depression, and borderline personality disorder. 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 her issue. The NDRB requested the Applicant’s medical treatment records. In the records received, the NDRB did note a reference to a medical diagnosis of PTSD, major depressive disorder, and alcoholism. However, the evidence of record shows that the Applicant was found fit for duty on 14 January 2011 by the Informal Physical Evaluation Board. Further, Department of Defense regulations provide that disciplinary separations supersede disability separations. Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons. Although the Applicant may feel that PTSD was the underlying cause of her misconduct, the record reflects willful misconduct that demonstrated she was unfit for further service. The evidence of record did not show that the PTSD was a sufficient mitigating factor to excuse the Applicant’s conduct or accountability concerning her actions. If the Applicant felt she was mistakenly processed for separation, it was her obligation to contest those charges at the time they were made. During an Administrative Separation Board, she would have had the opportunity to mount a defense against the charges. After an exhaustive review, the NDRB determined that PTSD did not mitigate the Applicant’s misconduct. The Applicant’s violations of the UCMJ were all conscious decisions to violate the tenants of honorable and faithful service. Therefore, the Board concluded the command acted appropriately, equitably, and properly in processing the Applicant for separation. Relief denied.

: (Decisional) () . The Applicant contends her discharge was unjust because she feels that her command did not take appropriate action in dealing with her claim of rape, which led to her mental health diagnoses resulting in her misconduct. 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 her issue. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that appropriate action was not taken in regards to her claim. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case. The Applicant’s violations of the UCMJ were all conscious decisions to violate the tenants of honorable and faithful service. Based on the Applicant’s record of service, the NDRB determined the Applicant engaged in conduct involving one or more acts or omissions that constituted a significant departure from the conduct expected of members of the Naval Service, and the awarded characterization of service 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