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

Docket No. MD08-01795

ex-PFC, USMC

Current Discharge and Applicant’s Request

Application Received:  20080826
Characterization of Service Received:  UNDER OTHER THAN HONORABLE CONDITIONS
Narrative Reason for Discharge:  MISCONDUCT
Authority for Discharge:  MARCORSEPMAN 6210.5 (DRUGS)

Applicant’s Request:  Characterization change to:  HONORABLE
		       Narrative Reason change to:  NONE REQUESTED

Summary of Service

Prior Service:
Inactive:	USMCR (DEP)	19891013 - 19900820  COG	Active:	NONE

Period of Service Under Review:
Date of Enlistment:  19900821	Age at Enlistment:  17 (PARENTAL CONSENT)
Period of Enlistment:  4 Years  0 Months
Date of Discharge:  19940330	Highest Rank:  LANCE CORPORAL
Length of Service:  03  Year(s)  07  Month(s)  10  Day(s)
Education Level:  12	AFQT:  66
MOS:  0151
Proficiency/Conduct Marks (# of occasions):  3.6 (8) / 3.4 (8)	Fitness Reports:  NOT APPLICABLE

Awards and Decorations (per DD 214):	Rifle SS NDSM

Periods of UA/CONF:  NONE

NJP:  2
- 19930623:	Article 134 (Wrongfully obtained long distance telephone services)
	Article 86 (Unauthorized absence - rifle range formation)
		Awarded: RIR FOP CCU  Suspended:  NONE

- 19931007:	Article 86 (Unauthorized absence from Company PT formation)
	Article 92 (Failure to obey an order or regulation -3 specifications: Violate BO 5500.1E by wrongfully possessing a pair of Nunchakus and derelict in duties x 2) 
		Awarded: FOP RESTR  Suspended:  FOP

SCM:  NONE          SPCM:  NONE          CC:  NONE

Retention Warning Counseling:  2
- 19930402:	For PFT failure.
- 19931222:	For my personality disorder which affects my ability to function effectively in a military environment and my unsatisfactory performance and conduct in adapting to Marine Corps environment.

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

	Block 28, Narrative Reason for Separation, should read: “MISCONDUCT”

The NDRB will recommend to the Commandant of the Marine Corps that the DD 214 be corrected as appropriate.

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:	☐	Substance Abuse:		☐	Criminal Records:	☐
	Family/Personal Status: 	☐	Community Service:  	☐	References:  		☐
              Additional Statements: 
                             From Applicant:   ☐	From Representation:         ☒	From Congress member:    ☐

                    Other Documentation:  ☐

Applicant Testified:  Yes
Applicant Available for Questions:  Yes
Witnesses:  Not Applicable 
Observers:  Not Applicable 

Pertinent Regulation/Law

A.  Paragraph 6210, Misconduct, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16D), effective 27 June 1989 until 17 August 1995.

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 claims his medical condition should have disqualified him from service. 
2.  The discharge was inequitable due to his medical condition.
3.  The Applicant’s medical condition, due to it being disqualifying, should warrant a discharge upgrade.
4.  The Applicant’s discharge was inequitable due to his medical condition and substance abuse, and he served the best he 
could.
5.  The Applicant’s discharge was inequitable because he was never provided with substance dependence counseling or rehabilitation. 
6.  The Applicant states he should not have been discharged for personality disorder or drugs, thus warranting an upgrade. 
7.  The Applicant states his minor disciplinary problems were a result of his medical condition, thus warranting an upgrade.

Decision

Date:  20090709	PERSONAL APPEARANCE HEARING	Location: Washington D.C.	 Representation: Civilian Counsel

By a vote of 4-1 the Characterization shall change to GENERAL (UNDER HONORABLE CONDITIONS).
By a vote of 5-0 the Narrative Reason shall remain MISCONDUCT.

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 Applicant’s record of service included two 6105 counseling warnings and two nonjudicial punishments (NJP’s) for violations of the Uniform Code of Military Justice (UCMJ): Article 86 (Unauthorized absence – 2 specifications of failure to go), Article 92 (Failure to obey an order or regulation: a specification of possessing nunchakus in barracks and 2 specifications of derelict in duties) and Article 134 (Wrongfully obtained long distance telephone services by taking a roommate’s phone card).  In addition, the Applicant admitted to using drugs while in the service.  The Applicant also had a pre-service drug waiver for using marijuana two times prior to entering the Marine Corps, and acknowledged his complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 27 September 1989.  Based on the offense(s) committed, processing for administrative separation was mandatory.  When notified for administrative separation processing, the Applicant waived his rights to consult with qualified counsel, to submit a written statement for consideration by the separating authority, and to request an administrative board.

Issues 1-4 and 7:  (Decisional) (Propriety/Equity)  RELIEF WARRANTED.  The Applicant contends his discharge was inequitable due to his medical condition (functional enuresis); which he claims was a disqualifying condition and was responsible for his misconduct.  First, the Applicant withheld pertinent information on his medical history form during his initial enlistment process.  On the questionnaire, it asked “Have you ever had or have you now…bed wetting since age 12?”  The Applicant marked “NO” on the Application.  This was not the truth and became an issue, says the Applicant, while in boot camp.  The Applicant was seen after boot camp for his condition, in which the Navy tried to determine whether it was a physical or psychological problem.  The NDRB opined that despite this medical condition, the Applicant’s drive and willingness to serve in the Marine Corps convinced the Navy medical staff and his military command to retain him.  Functional Enuresis is not necessarily a disqualifier, as it may be waived on a case-by-case basis.  Once in the Marine Corps, the decision to retain or discharge is based on a combination of factors deliberated by the medical staff, the Applicant and the commanding officer, depending on the severity of the issue and how it impacts his ability to carry-out his duties.  Ultimately, the decision of the commanding officer is final.  The Applicant was retained on active duty.  By all accounts, the applicant wanted to stay a Marine until he transferred to his last unit.

The Applicant entered the Marine Corps on 21 August 1990 and did not encounter any disciplinary action until he was counseled on 2 April 1993 for failing the Physical Fitness Test (PFT).  The Board opined that his medical condition, functional enuresis, was not a factor throughout most of his Marine Corps career.  After that initial counseling, the Applicant was disciplined three more times in a span of eight months, receiving one 6105 counseling and two NJP’s.  All of the disciplinary infractions seem to have occurred when the Applicant was transferred to an infantry unit.  The applicant’s condition may have been exasperated by the additional environmental stress, which caused unwanted embarrassment and attention.        

The Applicant has requested an upgrade in his characterization to Honorable.  For the edification of the Applicant, an Honorable discharge is warranted when the quality of a member’s service has met the standards of accepted conduct and performance of duty for military personnel, it is appropriate to characterize that service under Honorable conditions.  A General (Under Honorable Conditions) is appropriate if the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance outweighs positive aspects of the member’s military record.  With the medical condition still being a factor, the Applicant appears to have lived a productive life after the Marine Corps, even though he did not provide any documentation.  The Board opined that the Applicant’s medical condition played a significant enough role that hindered his ability to assimilate in his last unit. The Board determined the Applicant’s conduct, which forms the primary basis for determining the character of his service, reflected a significant departure from the conduct expected of a service member and opined that an upgrade to Honorable would be inappropriate, but an upgrade to General (Under Honorable Conditions) would be appropriate characterization of service.  Relief granted.   

Issue 4-6:  (Decisional) (Propriety/Equity)  RELIEF NOT WARRANTED.  When asked by the Board if he in fact had a drug problem during active duty, the Applicant said he did not.  He claims the statements he made about using drugs to the mental health staff were not true and were only made to help his cause in achieving a discharge.  But, the Applicant did admit to use of marijuana while in the Marine Corps, although he never tested positive on a urinalysis.  The NDRB opined that the statements made to medical personnel about extensive drug use were indeed false; specifically involving claims of using LSD, cocaine, speed and mushrooms, but did accept his admission to marijuana use while in the Marine Corps.  The Applicant also declined treatment for drug and alcohol abuse prior to discharge on 7 March 1994.  The NDRB determined that the Marine Corps was justified in separating the Applicant due to drug use.

Issue 6:  (Decisional) (Propriety/Equity)  RELIEF NOT WARRANTED. The Applicant contends he should not have been discharged for Personality Disorder and thus warrants an upgrade.  The Applicant was diagnosed by mental health staff as having a Personality Disorder, Not Otherwise Specified (NOS) with passive aggressive features.  In a letter dated 5 January 1994, the Division Psychiatrist wrote that the Applicant was found to be suffering from a Mixed Personality Disorder and it is this disorder that has led to multiple disciplinary infractions and unabated substance abuse.  The Board opined that although the Applicant may be unfit for duty, he was still accountable for his behaviors, both past and present.  The Board determined that the Marine Corps was justified in recommending separation due to Personality Disorder.  Relief denied. 

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service, medical and service record entries, and discharge process, the Board found the discharge was proper but not equitable.  Therefore, the awarded characterization of service shall change to GENERAL (UNDER HONORABLE CONDITIONS) and the narrative reason for separation shall remain MISCONDUCT.

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 Association of Service Disable 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 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 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:  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 BCNR can make changes to reenlistment codes.  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

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	CC - Civilian conviction	CCU - Correctional Custody Unit	BW – Confinement on bread and water

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