Title: DEPARTMENT OF THE NAVY
Author: CAP
Last saved by: janet.goode
Company: NCPB

Docket No. MD08-01156

ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20080429
Characterization of Service Received:  
Narrative Reason for Discharge:  
Authority for Discharge:  MARCORSEPMAN 

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

Summary of Service

Prior Service:
Inactive:  USMCR (DEP) 19991208 - 19991228  		Active:    19991229 - 20031003  

Period of Service Under Review:
Date of Enlistment:  20031004		Period of Enlistment:   Years   Months		Date of Discharge:  20061123
Length of Service:    Years    Month  20  Days	 Education Level:  	   Age at Enlistment:  	  AFQT:  38
MOS:  0431  	Highest Rank:   			Fitness reports:  
Proficiency/Conduct marks (# of occasions):   ()/ ()
Awards and Decorations (per DD 214):     (4)  KDSM NDSM NUC

Periods of UA/CONF:  

NJP:  
- 20041029:  Article 95 (Flight from apprehension)
                     Article 111 (Reckless operation of vehicle)
                     Article 128 (Assault)
                     Art 134 (Disorderly conduct)
                     Awarded:     Suspended:  

- 20050928:  Article 86 (UA, failed to be at appointed place of duty)
                     Awarded:     Suspended:    Vacate suspension 20051103

- 20060525:  Article 86 (UA, absence without leave 0730-1930, 20060515)
                     Awarded -     Suspended:  

- 20060630:  Article 86 (UA, absent from appointed place of duty 0600-0822)
                     Article 92 (Did not sign the restriction muster sheet at 0600, 0700, and 0800)
                     Article 107 (False official statement)
                     Awarded:    Suspended:  

SCM:  
- 20051205:  Article 92 (Failure to obey order or regulation)
                     Sentence:   RESTR
                     CA Action (20051205):  Approved and ordered executed

SPCM:	    CC:  

6105 Counseling:  
- 20040414:  For failure to follow written orders or regulations.

- 20051005:  For unauthorized absence.

6105 Counseling (cont): 

- 20060628:  For failure to obey orders and regulations as it relates to unauthorized absence.

- 20060705:  For Articles 86, 92, and 107.  This kind of behavior will not be tolerated.  Make sure you are at your
                      appointed place of duty at all times.

Types of Documents Submitted/reviewed

Related to Military Service:	DD 214:  	Service and/or Medical Record:  		Other Records:  

Related to Post-Service Period:	
	Employment:  			Finances:  			Education/Training:	
	Health/Medical Records:		Substance Abuse:			Criminal Records:	
	Family/Personal Status: 		Community Service:  		References:  		
Additional Statements From Applicant:  		From Representation:  		From Member of Congress:  

Other Documentation (Describe):  

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.

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 92 and 107.

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

Applicant’s Issues

1.  Applicant is bipolar and was not given adequate medical treatment.
2.  Unjustly targeted by unit as being a bad Marine.

Decision

Date:  20081204		Location:  Washington D.C.	 Representation:  

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  SECRETARIAL AUTHORITY.

Discussion

:  ()  RELIEF WARRANTED.  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.  The Applicant’s record of service was marred by 4 retention warnings, 4 NJP’s and a SCM for numerous repeated violations of the Uniform Code of Military Justice (UCMJ):  Article 86 (UA); Article 92 (Did not sign the restriction muster sheet at 0600, 0700, and 0800); Article 95 (Flight from apprehension); Article 107 (False official statement); Article 111 (Reckless operation of vehicle); Article 128 (Assault); and Article 134 (Disorderly conduct).  These are considered serious violations which could have resulted in a punitive discharge and confinement if adjudicated and awarded as part of a sentence by a special or general court martial.  The command did not refer the Applicant for a court martial but opted instead for a SCM and an administrative discharge. 

A review of the Applicant’s service record revealed he joined the Marine Corps in 1991 and served four years honorably.  He was selected to Staff Sergeant when he started to have disciplinary problems, which increased until he was discharged in November of 2006 with an “Under Other Than Honorable Conditions Discharge” for a Pattern of Misconduct.  The Applicant, concerned about marked changes in his behavior, self-reported in April 2004 his mother had recently told him he was bipolar and she had given him, unknown to him, Lithium from the age of 9 to 13 for this condition.  Additionally, she informed him he had been hospitalized for a suicide attempt during that period.  Although not suicidal or depressed at the time, the Applicant reported to the base hospital because he felt he needed help.  He informed a Naval Medical Officer he never got more than 3 to 4 hours of sleep a night and was engaging in reckless behavior (speeding with his motorcycle on Base).  The Applicant was seen again in November 2005, asking for help, with severe mood swings, depression, increased energy, racing thoughts, insomnia, poor appetite, hypomania – excessive happiness, increased spending and impulsivity.  Although these symptoms resemble those of a bipolar disorder a military staff psychologist diagnosed him with generalized anxiety disorder; the psychologist initially ruled out bipolar disorder.  However, the Applicant was prescribed Ambien for the continued insomnia, Lamictal for bipolar disorder, and Celexa for depression.  Six months later, on 26 May 2006 his new command referred him for additional Mental Health screening due to a recent NJP.  The Applicant’s symptoms remain the same despite his medications.  On 1 August 2006, a doctor at the Pearl Harbor Psychiatric Department diagnosed him as having Bipolar II Disorder with additional Generalized Anxiety Disorder.  The doctor recommended the Applicant be discharged based on his pre-existing medical condition vice a punitive discharge as the symptoms of his condition may “very well have contributed to the behaviors that led to his disciplinary problems.”  A third psychologist evaluated the Applicant on 6 September 2006 and also stated his problem was Bipolar II Disorder.  Symptoms are aggravated and manifest themselves in increased spending (clothing, cars, etc), increased impulsivity (drinking, spending, and sexual activity) and increased productivity.  At this point, the Applicant is taking Lamotrigine for bi-polar disorder, Trazodone and Citalopram for anxiety and depression and he is still having difficulties.

The Senior Medical Advisor to the SECNAVCORB reviewed this case and concluded, while not exculpatory, the Applicant’s diagnosed Bipolar II Disorder would appear to have played a pivotal role in his behavior deterioration.  Bipolar symptoms frequently appear in males during their twenties; when milder, the structure of a military environment can help keep symptoms under control.  However, they increase under key life stressors.  During this period, it was noted his fiancée ended 

their relationship and the Applicant was assuming more military responsibilities due to his advancement in grade:  Both situations brought significant stress to the Applicant.  The Senior Medical Advisor to the SECNAVCORB stated if the Applicant had been made subject to a Physical Evaluation Board (PEB), the PEB would have determined the Bipolar II Disorder rendered the Applicant unfit for continued and further naval service.  Since it existed prior to service and did not appear to have been aggravated, it would not have received a disability rating by PEB action.  

The Applicant successfully completed his first enlistment contract and was a staff sergeant select when his bipolar condition resurfaced.  As he started to get into trouble, he knew something was wrong with him and he repeatedly sought assistance.  Although the Applicant’s insight, judgment and impulse control were felt to be adequate, his bipolar disorder impacted his conduct.  He was clearly not suited for military duties and should have been not have been allowed to enlist.  Based on the above information, the Board determined an upgrade to “General (Under Honorable Conditions)” was appropriate.  Additionally, the Board determined the Narrative Reason for Separation should be changed to SECRETARIAL AUTHORITY vice MISCONDUCT.

:  ()  .  The Applicant claims he was not adequately treated for his bi-polar mental illness, was having trouble adjusting to his medication and not given a full opportunity to get well.  Additionally, he claims his command targeted him as a bad Marine as a result of his misconduct.  When reviewing a discharge, the Board does consider the extent to which a medical problem might affect an Applicant’s performance and ability to conform to the military’s standards of conduct and discipline.  A thorough review of the Applicant’s medical record shows the Applicant was seen regularly (almost weekly) by mental health professionals from November 2005 until his discharge on 23 November 2006.  He received several different diagnoses ranging from Generalized Anxiety Disorder, which ruled out bipolar disorder, to being diagnosed with Bipolar II Disorder, a pre-existing medical condition which should have prevented his enlistment.  He was prescribed various medications to control his depression, mood swings and insomnia.  Although he was still experiencing problems with his illness, the Board found he was not denied proper medical care.  

The Applicant’s conduct in his second enlistment was so opposite from his first enlistment that clearly something was wrong.  His second command, concerned about his behavior, directed a psychological evaluation.  The Applicant provides no documentation or statements from witnesses which support his claim he was targeted as being a bad Marine. Review of available records reveals nothing to indicate that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Marine Corps considering the offenses he committed.  The Board determined relief on these grounds to be unwarranted and his claim was without merit. 

After a thorough review of the available evidence, to include the Applicant’s Summary of Service,  Record, Discharge Process and evidence submitted by the Applicant, the Board found 

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 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:  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 or is referred to a court-martial 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 other medical related reasons.”  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 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 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

Key:	NFIR - Not Found In Record 	UA – Unauthorized absence	NJP – Non-judicial punishment	SCM – Summary court-martial
	SPCM – Special court-martial	FOP – Forfeiture of pay	RIR – Reduction in rank	EPD – Extra Duties
	CONF – Confinement		B&W – Confinement on bread and water			CC - Civilian conviction

Key:	NFIR - Not Found In Record 	UA – Unauthorized absence	NJP – Nonjudicial punishment	SCM – Summary court-martial	
	SPCM – Special court-martial	FOP – Forfeiture of pay	RIR – Reduction in rank	EPD – Extra Duties 
	CONF – Confinement		B&W – Confinement on bread and water