Author: CAP
Last saved by: joyce.meeks
Company: NCPB

Docket No. MD05-00923

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

FOR OFFICIAL USE ONLY

 ex-PFC, USMC
Docket No. MD05-00923

Applicant’s Request

The application for discharge review was received on 20050428.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable.  The Applicant also requests a change of his “REcode.” The Applicant requests a personal appearance discharge review before a traveling panel closest to Cincinnati, OH.  In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington, DC.  The NDRB also advised that the Board first conducts a documentary review prior to any personal appearance hearing. The Applicant designated the American Legion as the representative on the DD Form 293.  

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060119.  After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain General (Under Honorable Conditions) by reason of convenience of the government due to condition not a disability.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

Issue 1.  “Type of Discharge.  My discharge was for medical reasons and I in no way did anything to dishonor Corps, Country or Family.  I would like my records reviewed and have my discharge upgraded to Honorable so I’m eligible for the G I Bill”

Issue 2.  “Reentry Code.  I would like to be able to rejoin the military, once the V.A. clears my medical conditions”

The Applicant’s representative, American Legion, submitted no issues.

Documentation

In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:

Applicant’s DD Form 214
College registration information from Miami University of Ohio, retrieved April 21, 2005 (2 pages)
Copy of work and training cards, United Brotherhood of Carpenters and Joiners of America, Local Union 113 (2 pages)

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

	Inactive:  USMCR (DEP)	20020821 - 20030122	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20030123		Date of Discharge:  20040611

Length of Service (years, months, days):

Active:    01  04  19
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  18

Years Contracted:  4

Education Level:  12				AFQT:  86

Highest Rank:  PFC				MOS:  7200

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  NA*				Conduct:  NA*

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  National Defense Service Medal, Rifle Marksman Badge

*Not Available

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

GENERAL (UNDER HONORABLE CONDITIONS)/CONDITION NOT A DISABILITY, authority:  MARCORSEPMAN Par. 6203.2.

Chronological Listing of Significant Service Events:

030729:	Counseling:  Advised of deficiencies in performance and conduct (Diagnosed physical condition not being a disability, (LCL Strain) and any resultant or aggravated condition which interferes with the effective performance of duties.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

040303:	Counseling:  Advised of deficiencies in performance and conduct (On or about 29 Jan 04, through 19 Feb 04 malinger at MarCorDet, Ft. Bliss, TX for the purpose of avoiding duty as a student in the Stinger Avenger School.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

040315:	Beaumont Army Medical Center (AMC).
Applicant admitted on 29 January 2004.  Discharged on 19 February 2004.  Final Diagnosis:	
AXIS I:	A.  Suicidal gesturing
B.	Phase of life/life circumstances problem
C.	Occupational problems
D.	Partnership problems
AXIS II:	Traits of borderline personality disorder
AXIS III:	A.  Resolved right knee injury
B.	Cluster headaches
AXIS IV:	Stressors of Marine Corps training and severed personal relationship
AXIS V:	Admission general assessment of functioning – 30; highest in past 12 months – 70.

040326:	Counseling:  Advised of deficiencies in performance and conduct (Destruction of government property, altering the date of birth on DD Form 2 (Armed Forces of the United States Identification Card).  When confronted by Cpl D_, alcohol was detected on [the Applicant’s] breath while under the legal age to consume alcohol.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

040331:	Counseling:  Advised of deficiencies in performance and conduct (Failure of Physical Fitness Test.  Private First Class R_(Applicant) did on 031208 fail a Semi-Annual Physical Fitness test.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

040409:	Applicant was screened this date due to a command referral for drinking underage age and given the diagnosis of alcohol abuse.  [Extracted from memorandum dated 040518.]

040420:	Applicant enrolls in Drug and Alcohol Education class.  (Patient will complete three group therapy sessions before 050518.)  [Extracted from memorandum dated 040518.]

040428:	Acknowledged understanding of eligibility but not recommended for promotion to Lance Corporal for the month of May 2004 promotion period due to not medically qualified to participate in a Physical Fitness Test.  Applicant chose not to make a statement.

040504:	Medical evaluation by LTC D_ H. L_, MD, PsyD, MC.
	AXIS I: Depressive disorder not otherwise specified.
	AXIS II: No diagnosis.
	AXIS III: None.
	Remarks: The service member has been seen at Community Mental Health, Fort Bliss, for mental health evaluation secondary to recent inpatient psychiatric hospitalization due to depressed mood with suicidal ideation.  History and clinical evaluation reveals above noted diagnosis.  Service member presents with a history of recurrent depressive symptoms that to date has not been responsive to medication management.  The service member’s status presents continued risk to himself and his command.  It is therefore recommended that the service member be administratively separated under the provisions of Chp 5-17 (Other Physical or Emotional Problems).  The service member is psychiatrically cleared for any administrative action deemed appropriate by command.  The service member denies suicidal or homicidal ideation, plan or intent at this time.  However, command is encouraged to move expeditiously toward administrative discharge so as to preclude any untoward outcome.  The service member will continue in outpatient treatment at Community Mental Health, Fort Bliss, until such time as he is separated from active military service.”

040512:	Counseling:  Advised of deficiencies in performance and conduct (Per mental status evaluation it has been concluded by a medical doctor that Applicant has a depressive disorder not otherwise specified, which is a condition not a disability.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

040513:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

040514:	Applicant notified of intended recommendation for general (under honorable conditions) discharge by reason of a condition not a disability with the least favorable characterization of service possible as general (under honorable conditions). The factual basis for this recommendation was the report of mental status evaluation given by D_ H. L_, M.D., LTC, MC, Psychiatrist, William Beaumont Army Medical Center, where the Applicant was diagnosed with a depressive disorder not otherwise specified.  

040519:	Commanding Officer, Marine Corps Detachment, Ft. Bliss, TX recommended Applicant’s discharge with a general (under honorable conditions) by reason of a condition not a disability. Commanding Officer’s comments:  “The following information is offered in support of my recommendations:
a.  On 29 July 2003, Private First Class R_(Applicant) was given a 6105 counseling for being diagnosed with a physical condition not being a disability for a “LCL Strain”.
b.  On 11 September 2003, Private First Class R_(Applicant) was given a page 11 counseling for no longer being medically qualified for the 1.1W Program, “Infantry Option”.
c.  On 28 January 2004, Private First Class R_(Applicant) was hospitalized for seven days at William Beaumont Army Medical Center (WBAMC), for a mental condition.
d.  On 3 March 2004, Private First Class R_(Applicant) was given a 6105 counseling for malingering.
e.  On 26 March 2004, Private First Class R_(Applicant) was given a 6105 counseling for destruction of government property.
f.  On 31 March 2004, Private First Class R_(Applicant) was given a 6105 Counseling for failure of Physical Fitness Test.
g.  On 28 April 2004, Private First Class R_(Applicant) was given a page 11 counseling not recommending him for promotion due to not being medically qualified to participate in a Physical Fitness Test.
h.  On 4 May 2004, Private First Class R_(Applicant) was given a Mental Status Evaluation by D_ H. L_, M.D., LTC, MC, Psychiatrist, WBAMC, and found to have a Depressive disorder not otherwise specified.
i.  On 6 May 2004, Private First Class R_(Applicant) was dropped from the Stinger Avenger School, due to his mental status.
j.  On 12 May 2004, Private First Class R_(Applicant) was given a 6105 counseling concerning his mental status evaluation and was advised that failure to take corrective action may result in administrative separation or limitation on further service.
k.  On 14 May 2004, I made the decision that Private First Class R_(Applicant) had not made any progress with his mental status, at which time Private First Class R_(Applicant) was notified about his separation proceedings.”

040526:	Acknowledged understanding of eligibility but not recommended for promotion to Lance Corporal for the month of June 2004 promotion period due to not being medically qualified to participate in a Physical Fitness Test.  Applicant chose not to make a statement.

040526:	GCMCA, Commanding General, USMC Training Command, directed the Applicant's general (under honorable conditions) discharge by reason of convenience of the government due to a physical condition not a disability.

Service Record was missing elements of the Summary of Service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20040611 by reason of convenience of the government due to condition not a disability (A) with a service characterization of general (under honorable conditions).  After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (B and C).  The Board presumed regularity in the conduct of governmental affairs (D).

Issue 1.  When a Marine’s service has been honest and faithful, it is appropriate to characterize that service as honorable.  A general discharge is warranted when significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record.  The Applicant’s counselings illustrate the Applicant malingered, destroyed government property and consumed alcohol under the legal drinking age.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the Marine Corps and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

The Veterans Administration determines eligibility for post-service benefits not the Naval Discharge Review Board.  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.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  

Issue 2.  Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, NDRB is not authorized to change a reenlistment code.  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.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.

The Board discovered no impropriety after a review of Applicant’s case.  There is no law or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving Naval service.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge 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.  Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  As of this time, the Applicant has not provided sufficient post-service documentation for the Board to consider.  Relief denied.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge.  Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  Marine Corps Separation and Retirement Manual, (MCO P1900.16F, effective 
01 September 2001 and Present), paragraph 6203, CONVENIENCE OF THE GOVERNMENT

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

D.  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 IV - INFORMATION FOR THE APPLICANT

If you believe that 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 Directive 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Directive.  You should read Enclosure (5) of the Directive 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 Directive 1332.28 and other Decisional Documents by going online at “http://Boards.law.af.mil”.

The names, and votes of the members of the 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