Title: DEPARTMENT OF THE NAVY
Author: CAP
Last saved by: joyce.meeks
Company: NCPB

Docket No. MD06-01188

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

FOR
 ex-PVT, USMC
MD06-01188

Current Discharge and Applicant’s Request:

Application Received:  				20060907     
Characterization of Service:			GENERAL (UNDER HONORABLE CONDITIONS)
Narrative Reason for Separation:		FRAUDULENT ENTRY INTO THE MARINE CORPS (ADMINISTRATIVE DISCHARGE BOARD REQUIRED BUT WAIVED)
Discharge Authority:				MARCORSEPMAN 6204.3
Last Duty Assignment/Command at Discharge:	HQSVCBN, SOI, MCB, CAMPEN, CA 92055

Applicant’s Request:	
	Characterization change to:		
	Narrative Reason change to: 		FAILURE TO ADAPT
	Review Requested:			
Representation:  					

Applicant’s Issues:

1.  Reentry code change
2.  Reenlistment  opportunity
3.  Youth and Immaturity
4.  Post Service
Decision:

By a vote of 5-0 the Characterization shall remain GENERAL (UNDER HONORABLE CONDITIONS).	
By a vote of 5-0 the Narrative Reason shall remain FRAUDULENT ENTRY INTO MILITARY SERVICE.

Date of Decision:					20070816     
Location of Board:				Washington D.C.
Complete Service Record:				YES	
Complete Medical Record:			yes
Complete Discharge Package:			YES

Regarding propriety, the Board found the discharge:	PROPER
Regarding equity, the Board found the discharge:	EQUITABLE

Issue 1-2:  The Board does not have the authority to grant the relief for which the Applicant petitioned.  The Applicant is directed to the Addendum regarding reenlistment issues.  

Issue 3 (Equity):  The Applicant contends that his problems while in the service can be attributed to his immaturity.  While the Applicant may feel that this was the underlying cause of his misconduct, the evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions.   There is credible evidence in the record that the Applicant concealed or omitted mention of  pre-existing mental health problems, including suicidal ideations, gestures, and/or attempts, during the enlistment process.  When a Marine’s service has been honest and faithful, it is appropriate to characterize that service as under honorable conditions.   Characterization of service as general (under honorable conditions) is warranted when significant negative aspects of the member’s military conduct or performance outweigh positive aspects of the member’s military record.  The Applicant’s conduct during the period of service was marred by a non-judicial punishment  (NJP) for violation of Article 134 of the Uniform Code of Military Justice (UCMJ), communicating a threat.   This is a serious offense for which a Bad Conduct or Dishonorable Discharge would have been authorized had the matter been adjudged at a Court-Martial.   An upgrade to an honorable discharge would therefore be inappropriate in this case.  

Issue 4 (Equity): The NDRB is authorized to consider post-service factors in deciding whether to re-characterize a discharge.  However, there is no law or regulation providing that an unfavorable discharge may be upgraded based solely on the passage of time, good conduct, or favorable endorsements in the civilian life subsequent to leaving the service.   Ordinarily, the NDRB must find that a procedural impropriety or inequity existed during the period of enlistment in question before it can grant relief.  Outstanding post-service conduct is considered by the NDRB to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  The Applicant provided no documentation of his post-service accomplishments and conduct.  The Applicant's efforts need to be more encompassing.  For example, the Applicant could have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, evidence of drug free existence, and certification of non-involvement with civil authorities.  The Board determined that the documentation provided by the Applicant did not mitigate the misconduct that resulted in the characterization of his discharge.    

In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Service Record Entries, Medical Record Entries, Elements of Discharge and evidence submitted by the Applicant, the Board found the Applicant’s discharge proper and equitable.

Summary of Service:

Prior Service:
Inactive: USMCR (DEP)				19950818-19951010 
Active:   		                    		

Period of Service Under Review:
Date of Enlistment:  				19951011     
Years Contracted:  				;   Extension:   
Date of Discharge:				19960730
Length of Service
	Active:					00Yrs  09  Mths  19  Dys  
	Time Lost During This Period:		 
Education Level:  				
Age at this Enlistment:  				19
AFQT:  						47
MOS:						9971
Highest Rank:					
Proficiency/Conduct marks (# of occasions):		4.3(1)/4.2(1)
Awards and Decorations (as listed on the DD Form 214):	RIFLE EXPERT BADGE

Service Record Entries Related to Characterization of Service or Narrative Reason for Separation

19960116:	Naval Hospital, San Diego, 2nd NMCSD psychiatric eval; 1st psychiatric admission for suicidal ideation. 
	Diagnosis:
	AXIS I:  Adjustment disorder with depressed mood.
	AXIS II:  Personality disorder NOS, with borderline and dependent traits.
	AXIS III:  None known
	Recommendation:  Although he is fit for full duty, he has a severe personality disorder that renders him unsuitable for continued military service.  Although not currently suicidal or homicidal, this member is judged to represent a risk of harm to himself and other if retained on active duty, especially in view of his history of suicide attempts.  He is deemed fit for return to duty for immediate processing for entry level administrative separation (ELS), which should be handled expeditiously in compliance with OPNAVINST 1910.1C and BUPERSMAN 3630200.  It is also recommended that he not have access to any weapon, not operate government vehicle, work with classified materials,  nor be involved in field work.

19960123:	Counseling:  Advised of deficiencies in performance and conduct (Immature and irresponsible behavior, poor coping and problem solving skills, avoidant attitude and approach to your responsibilities as a Marine, poor attitude relative to your military obligation a s a Marine, self destructive and suicidal ideations, necessary corrective actions explained, sources of assistance provided, and advised being processed for administrative discharge action.

19960124:	Naval Hospital, San Diego, 3rd NMCSD psychiatric eval; 2nd NMCSD admission for suicidal ideation. 
	Diagnosis:
	AXIS I:  Adjustment disorder with depressed mood.
	AXIS II:  Personality disorder NOS, with borderline and dependent traits.
	AXIS III:  None known

	History of Present Illness:  LT B_S_ USN notes “He has a long history of frequent suicidal ideation with 3 impulsive suicide attempts prior to beginning active duty: once he leapt from his wife’s truck at 65 MPH, and twice he overdosed on father’s pain pills.  He was seen by a psychiatrist approximately a year ago after a suicide attempt, diagnosed with depression and prescribed an antidepressant which he refused to take.”

	Recommendation:  Although he is fit for full duty, he has a severe personality disorder that renders him unsuitable for continued military service.  Although not currently suicidal or homicidal, this member is judged to represent a risk of harm to himself and other if retained on active duty, especially in view of his history of suicide attempts.  He is deemed fit for return to duty for immediate processing for entry level administrative separation (ELS), which should be handled expeditiously in compliance with OPNAVINST 1910.1C and BUPERSMAN 3630200.  It is also recommended that he not have access to any weapon, not operate government vehicle, work with classified materials,  nor be involved in field work.

19960403:	NJP for violation(s) of UCMJ:
	Article 134: Did wrongfully communicate a threat to Doctor S_ B_ S_, LCDR, MC, USNR about PVT C_ M. S_, by saying he would bite PVT S_’s throat out, and stand in front of him so he could watch the blood run down his face.
	Award:  Forfeiture of $435.00 for 2 months (suspended for 6 months) , restriction and extra duty for 45 days (suspended for 6 months).
	Not appealed.

19960412:	Counseling:  Advised of deficiencies in performance and conduct (Immature and irresponsible behavior, poor coping and problem solving skills, avoidant attitude and approach to your responsibilities as a Marine, poor attitude relative to your military obligation a s a Marine, self destructive and suicidal ideations, necessary corrective actions explained, sources of assistance provided, and advised being processed for administrative discharge action.

19960520:	Applicant to voluntary leave awaiting administrative separation.
Medical Record Entries Related to Characterization of Service or Narrative Reason for Separation

19950121:	Applicant’s SF93, Record of Medical History, indicates “No” answers to “Have you ever attempted suicide?” and “Have you ever had or have you now depression or excessive worry?”

Elements of Discharge:  [INVOLUNTARY]

Date Notified:					19960603
Basis for Discharge:				DEFECTIVE ENLISTMENT due to: 										
				
Least Favorable Characterization:			UNDER OTHER THAN HONORABLE CONDITIONS
Commanding Officer’s Intended Recommendation:	GENERAL (UNDER HONORABLE CONDITIONS)
Date Applicant Responded to Notification:		19960603
Rights Elected at Notification:
	Consult with Counsel			
	Obtain Copies of Documents		
	Submit Statement(s) (date)		
	Administrative Board			

Commanding Officer Recommendation (date):	  (19960609)
SJA review (date):				  (19960718)
Separation Authority (date):	COMMANDING GENERAL, MARINE CORPS BASE, CAMP PENDLETON (19960718)
Narrative Reason directed:				
Characterization directed:				
Date Applicant Discharged:			19960730

Additional Information Considered by Board

Type of documentation submitted by the Applicant and considered by the Board
       
       	Document Type					#Pages
       Related to Period of Service Under Review:
	Service/Medical Record:				1     
	Other Period of Service:				     
       Related to Post-Service Period:
	Community Service:				     
	Education:					     
	Employment:					     
	Health/Medical:					     
	Character Statements:				     
	Criminal Records Checks:				     
	Additional Statements from Applicant:		     
        Other Documentation (Describe Below)			     

        Total Number of Pages:				1     

Pertinent Regulation/Law

A.  The Marine Corps Separation and Retirement Manual, MCO P1900.16E, effective 
18 Aug 95 until 31 Aug 2001, paragraph 6204, DEFECTIVE ENLISTMENT AND INDUCTION.

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.

C.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 134, Threat, communicating.

ADDENDUM:  Information for the Applicant

Complaint Procedures:  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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction.  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:  Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the 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.  If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

Service Benefits:  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.

Employment/Educational Opportunities:  The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.  

Reenlistment/RE-code:  Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to change a reenlistment code.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.  Additionally, the Board 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 subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended.  The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings.  If the action includes either a punitive or administrative discharge for misconduct, 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 “PTSD.”  Only the Board for Correction of Naval Records can grant this type of narrative reason change.  

Automatic Upgrades - 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 may 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.  

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 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.  

Board Membership:  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