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Docket No. MD06-00252

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

FOR OFFICIAL USE ONLY

 ex-LCpl, USMC
Docket No. MD06-00252

Applicant’s Request

The application for discharge review was received on 20051118.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record discharge review.  The Applicant did not designate a representative on the DD Form 293.  

Decision

A documentary discharge review was conducted in Washington, D.C. on 20061005.  After a thorough review of the 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 and reason for discharge shall not change.  The discharge shall remain General (Under Honorable Conditions) by reason of convenience of the government due to a personality disorder.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application to the Board:

“My discharge was not due to bad conduct it was due to a medical condition and at time of discharge I was not an NCO (E-4).  And after 6 months of discharge I would be able to upgrade my Discharge to Honorable.”

Documentation

In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:

Report from Pasco County, Florida Sheriff’s Office, dtd November 03, 2005  (2 pages)
	Applicant’s DD Form 214, (member 4)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	20010925 - 20020106	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20020107		Date of Discharge:  20031212

Length of Service (years, months, days):

Active:    01  11  06  
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  21

Years Contracted:  4 

Education Level:  12				AFQT:  31

Highest Rank:  LCpl				MOS:  0311

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):  Marksman Rifle Badge, National Defense Service Medal

*Not Available

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

GENERAL (UNDER HONORABLE CONDITIONS)/PERSONALITY DISORDER, authority:  MARCORSEPMAN Par. 6203.3.

Chronological Listing of Significant Service Events:

020906:	Counseling:  Advised of deficiencies in performance and conduct (Suicidal and homicidal intentions due to a Personality Disorder.).  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

020912:	Mental Health Evaluation, 1^st Marine Division Psychiatrist, LT J_ H. B_:
1. In accordance with the references above, Private J_ D. K_ (Applicant) was seen on 12 Sep 02 at Division Psychiatry by LT J_ H. B_ after a referral by Dr. M_ for a voluntary, routine evaluation in the context of depressive symptoms.
2. The purpose of this memorandum is to provide administrative recommendations regarding psychiatric fitness, suitability, and recommended treatment in the case of Private J_ D. K_ (Applicant).
3. The evaluation revealed: PVT K_ has a long history of violent and aggressive behavior prior to joining the USMC.  He also has a history of treatment for ADHD and impulsive behavior.  He has a history of poor insight and poor anger control.  His current problems stem from his chronic knee pain and the difficulty he has had in responding to the pressures of criticisms by his fellow marines.  He has had 4 NJPs for various problems.  He is not motivated for service.
4. The diagnosis(es) is/are:
AXIS I: Occupational Problem, Depressive Disorder NOS
AXIS II: Personality Disorder NOS
AXIS III: Bilateral Chronic Knee Pain
AXIS IV:  as above
AXIS V: 60 moderate problems with functioning
5. The service member is unsuitable for continued military service on the basis of the above diagnosis of Personality Disorder.
6. The service member is currently unfit for continued military service on the basis of the above diagnosis of chronic knee pain pending a full evaluation.
7. The following clinical treatment plan has been initiated:  The service member has been started on antidepressant medication in an effort to reduce his symptoms.  However, treatment with medication will not recover a fit and suitable marine.
8. RECOMMENDATIONS TO THE COMMANDING OFFICER:
a. Precautions: Recommend a removal of this marine from an environment in which he is subject to criticism and harassment for his medical condition.  He is unlikely to tolerate this and is likely to respond in a violent or unpredictable fashion.  He is not currently homicidal or suicidal.
b. Process for administrative separations per applicable service directive.  The service member does not have a severe mental disorder and is not considered mentally disordered; however, the service member manifests a longstanding disorder of character, behavior and adaptability that is of such severity to preclude adequate military service.  Although not currently at significant risk for suicide or homicide, due to a lifelong pattern of maladaptive responses to routine personal and/or work related stressors, the service member may be become dangerous in the future.
c. The service member is not suitable for continued access to classified material and the service member’s clearance should be retained/rescinded.
d. Other: This service member should not be given access to weapons. He is responsible for his actions and competent to make decisions for himself.

020926:	NJP for violation of UCMJ, Article 92:  
	Specification: In that Pvt K_ (Applicant), on or about 0600, 20Aug 02, failed to obey orders and regulations by having (3) 7 ½ throwing knives in his room.
	Violation of UCMJ Article 115:
	Specification:  In that Pvt K_ (Applicant), did, from about14 July 02, to 15 July 02, while on light duty, crutches for knees, was seen in Oceanside skateboarding.
Violation of UCMJ Article 117:
Specification:  In that Pvt K_ (Applicant), on or about 9 Aug 02, was heard making several gestures toward marines within Echo Company stating that “if he had a gun be would kill everyone” or something to that effect.
Violation of UCMJ Article 128:
Specification:  In that Pvt K_ (Applicant), on or about 9Aug 02, assault another Marine by placing a knife to his throat and applying pressure saying he was going to cut his throat.
	Award:  Forfeiture of $511.00 pay per month for 2 months, restriction for 60 days.  Not appealed.

030128:	Counseling:  Advised of deficiencies in performance and conduct (Suicidal and homicidal intentions due to a Personality Disorder.)  Necessary corrective actions explained, sources of assistance provided, and advised being processed for administrative discharge action.

030429:	Applicant notified of intended recommendation for discharge by reason of Personality Disorder with a characterization of service as general (under honorable conditions).  The factual basis for this recommendation was the diagnosis of LT J. H. B_, the Division Psychiatrist.    

030429:	Applicant advised of rights and having elected not to consult, elected to waive all rights.

xxxxxx*:	Applicant submits handwritten statement:  To whom it may concern my name is Private J_ D_ K_ (SSN).  I am writing this statement on my own free will.  I request to be discharged from the United States Marine Corps.  The reason for this request is due to Mental Health and a Bone contusion to the right knee.  On the 9 Sept 2002, I was diagnosed with Depression NOS, Personality Disorder, and 60 moderate problems with functioning.  It has been recommended by LTCMDR J_ H B_, Division Psychiatrist, 1^st Marine Division, that I should be processed for Administrative Separation on the above diagnoses of Personality Disorder, classified material clearance retained, and NO access to weapons.  I am also unsuitable for continued military service due to the Personality Disorder, and unfit for continued military service for, Bone Contusion to the right knee.  I am currently taking Celexa for Depression, this medication also acts as a anti-psychotic.  This mediction inhibits me from doing any military duty that requires me being in service.
	[*Statement undated.  Placed in chronology based on its inclusion as enclosure (9) to Commanding Officer, 2d Battalion, 5^th Marines (Rear) recommendation for discharge dated 030430.]

030430:	Commanding Officer, 2d Battalion, 5^th Marines (Rear), recommended to Commanding General, 1^st Marine Division, that Applicant be administratively separated with a general (under honorable conditions) discharge by reason of Personality Disorder.  Commanding Officer’s comments:  “Private First Class K_ (Applicant) has been diagnosed, by competent medical authorities with borderline Depressive Disorder NOS and Personality Disorder NOS.  Based on this Diagnosis, PFC K_ has been denied access to weapons as he has made indications that he is prone to physical violence to himself and those around him.  Private First Class K_ (Applicant)’s performance to date has been unsatisfactory.  He is an apathetic Marine incapable of performing the simplest of tasks.  Based on the recommendation of the medical authorities, his chain of command, and the needs of the Marine Corps,  I feel it is in everyone’s best interest that PFC K_ (Applicant) be separated.” 

030505:	Commanding Officer, 5^th Marines (Rear), forwards recommendation, concurring with Battalion Commander’s recommendation.

030801:	Commanding Officer, 1^st Marine Division (Rear), forwards recommendation to Commanding General, Marine Corps Base, Camp Pendleton per Memorandum of Understanding between Commanding General, Marine Corps Base, Camp Pendleton and Commanding General, 1^st Marine Division (Rein) dtd November 2002.  Recommends that Private First Class K_ (Applicant) be discharged for a personality order and that the characterization of service be General (Under Honorable Conditions).

031014:	Psychological Evaluation, 1^st Marine Division Psychiatrist, LCDR J_ R_, M.D., MC, USNR:  
1. Lance Corporal K_ (Applicant) was evaluated on 14 October 2003 by the Division psychiatrist, LCDR R_.
2. The purpose of this evaluation is to determine PVT K_ (Applicant) suitability for further service. He has been recommended for administrative separation by three psychiatrists including the previous Division psychiatrist.
3. LCPL K_ (Applicant)’s evaluation revealed; member has a long history of repeated violence and aggressive behavior prior to coming to USMC. He was suspended numerous times while a teenager for fighting and was placed on probation for assault. Prior to the USMC, he had a history of impulsive behavior including self-mutilation and spending, and received 6 months of counseling. Member has a history of unstable interpersonal relationships as shown through his work problems, previous assault and homicidal ideations towards members of his unit. He has had problems with intense uncontrollable anger for years which is currently prevents him from functioning well on active duty.
4. PRIMARY DIAGNOSES: Axis I: Occupational problem,
Depressive Disorder NOS
Axis II: Personality Disorder NOS
Axis III: Bilateral Chronic Knee Pain
Axis IV: as Above
Axis V: 60 moderate problems with functioning
5. PLANS/RECOMMENDATION
The service member is unsuitable for continued military service on the basis of the diagnosis for Personality Disorder.
I recommend expeditious administrative separation for LCPL (sic) K_ (Applicant).  The service member does not have a severe mental disorder and is not considered mentally disordered; however, the service member manifests a long standing disorder of character, behavior and adaptability that is of such severity to preclude adequate military service.  Although not currently at significant risk for suicide or homicide, due to a lifelong pattern of maladaptive responses to routine personal and/work related stressors, the service member may become dangerous in the future.
The service member is not suitable for continued access to classified material and weapons.  The service member’s clearance should be rescinded.  He is still responsible for his actions and competent to make decisions for himself.
Precautions:  Recommend removal of this Marine from an environment in which he is subject to criticism and harassment for his condition.  He is unlikely to tolerate this and is likely to respond in a violent or unpredictable fashion.  He is not currently suicidal or homicidal.
He will follow up with the Mental Health Department for psychotherapy and medication treatment, however treatment with medications will not recover a fit and suitable marine.  He is being treated with celexa 40mg per day and seroquel 50 mg twice a day to help with his mood and anger control.

031114:	Commanding Officer, 5^th Marine Regiment, recommended to Commanding General, 1^st Marine Division, that the Applicant be discharge with a general (under honorable conditions) by reason of Personality and Depressive Disorder.  Commanding Officer’s comments:  “Private First Class K_ (Applicant) received a medical reevaluation on 14 October 2003 by the Division Psychiatrist, Lieutenant Commander J_ R_, and was found to have a Personality and Depressive Disorder coupled with chronic knee pain.  Due to these findings, Lieutenant Commander R_ recommended an administrative separation because Private First Class K_ (Applicant)’s mental disorders make him unsuitable for military service.  He states that Private First Class K_ (Applicant) does not handle criticism well by his fellow Marines and has a difficult time responding to the pressures of military life.  Prior to this evaluation, the previous Division Psychiatrist, Lieutenant J. H. B_, saw Private First Class K_ (Applicant) on 12 September 2002, and also recommended an administrative separation for personality and Depressive Disorder.”

031209:	GCMCA, Commander, 1^st Marine Division, directs that Applicant be discharged for personality disorder and that characterization of service be general (under honorable conditions).  

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20031212 by reason of convenience of the government due to a personality disorder (A) with a service characterization of general (under honorable conditions).  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (B and C).  

In the Applicant’s issue that his discharge “was not due to bad conduct it was due to a medical condition,” the Board found that the basis for discharge was a personality disorder.  The Applicant appears to misunderstand the difference between the basis for discharge (the reason why he was discharged) and the characterization of his overall service during his enlistment.  The Applicant’s overall service was characterized as general (under honorable conditions).

When the service of a member of the U.S. Marine Corps 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 service was marred by a retention warning and a nonjudicial punishment proceeding for violations of Articles 92, 115, 117 and 128 of the UCMJ.  The NDRB advises the Applicant that certain serious offenses warrant separation from the Marine Corps in order to maintain proper order and discipline. Violations of Article 92, 115 and 128 are considered serious offenses and a punitive discharge is authorized if adjudged at a special or general court-martial.  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 U.S. Marine Corps and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

The NDRB did note a technical impropriety in the Applicant’s separation processing.  The record indicates that the Applicant was provided a retention warning prior to being diagnosed with a personality disorder.  Normally, such a warning occurs after diagnosis in order to put a servicemember on notice that a personality disorder, in and of itself, is not a bar to further service.  Nevertheless, the NDRB is convinced that this procedural error was not prejudicial to the Applicant and therefore affords him no relief.  The record clearly demonstrates that the Applicant did have a properly diagnosed personality disorder and that he was unable to function in the Marine Corps.  Further, the Applicant did not challenge the proposed discharge, but rather explicitly requested to be discharged.  There is little doubt to the NDRB that the discharge would have remained the same if the error had not been made and thus relief based upon this error is not warranted.  

The Applicant implies that he was told, or is under the belief, that after six months he could have his discharge upgraded.  There is no law or regulation that authorizes a discharge to be automatically upgraded after six months.  A former service member has 15 years, from the date of discharge, to petition the Board for consideration of an upgrade.  The Board does not automatically upgrade a discharge after six months.  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.  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.

Pertinent Regulation/Law (at time of discharge)

A.  Paragraph 6203, CONVENIENCE OF THE GOVERNMENT, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 02 Sep 01 until Present.

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.

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