DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS

2 NAVY ANNEX
WASHINGTON DC 20370-5100

 

BAN
Docket No: 10243-08
7 October 2009 ,

From: Chairman, Board for Correction of Naval Records
To: Secretary of the Navy

Subj:

 

Ref: {a) 10 U.S.C, 1552

Encl: {1) DD Form 149 dtd_9 Oct 08 with attachments
- (23) Naval Hospital Twentynine Palms, Mental Health

Department Evaluation ltr dtd 19 Apr 00

)} DD Form 214

) Corrected Version of DD Form 214

5) Naval Discharge Review Board ltr dtd 8 May 08

) HQOMC MMSR3 memo dtd 8 Dec 08 |

} HOMC MMER/RE memo dtd 3 Apr 09

1. Pursuant to the provisions of reference (a), Petitioner, a former
enlisted member of the United States Marine Corps, filed enclosure (1)
with this Board requesting that his reenlistment code of RE-3P, his
reason for separation, and his general discharge characterization be
changed. Additionally, Petitioner, by implication, is requesting. the.
removal of his nonjudicial punishment (NIP) dtd 11 August 2000.

2. The Board, consisting of Messers. ee and

pin reviewed Petitioner's allegations of error™and injustice on
e fper 2009 and, pursuant to its regulations, determined that
the limited corrective action. indicated below should be taken on the
available evidence of record. Documentary material considered by the

Board consisted of the enclosures, naval records, and applicable
statutes, regulations, and policies.

 
 
 

3. The Board, having reviewed all the facts of record pertaining to
Petitioner's allegations of error and injustice finds as follows:

a. Before applying to this Board, Petitioner exhausted all.
administrative remedies available under existing law and regulations
within the Department of the Navy.

b. Although it appears that enclosure (1) was not filed in a timely
manner, it is in the interest of justice to waive the statute of
limitations and review the application on its merits.

c. Petitioner enlisted in the Marine Corps on 25 September 1999.
In early April 2006, after Marine Corps basic training, Petitioner was
given two weeks of temporary additional duty (TAD) for “Hometown
. Docket No. 10243-08
Recruiting.” He successfully completed his TAD and received a letter
of commendation for his outstanding performance by recruiting two
individuals into the Marine Corps.

d. On 16 April 2000, upon completion of his TAD, he missed the last
shuttle van back to his parent command, Twentynine Palms, California.
A man came up to him and offered him a ride back to the base. Since
the man stated that he was going to Twentynine Palms himself;
Petitioner accepted.-. Petitioner states that the man did not appear.

‘untrustworthy at the time, looked clean cut, and he stated that he

felt if anything did happen, he would be able to protect himself.
Petitioner claims that while on his way back to base, the man asked if
they could stop briefly at his apartment to pick something up. He
then invited Petitioner into his apartment. While there, the man
offered him something to drink. Petitioner claims that the next thing
he remembers was waking up naked on the living room couch of the man’s
apartment... At this point; Petitioner states he was “freaked out” and.
did not know what had happened. He got dressed, left the apartment
and walked along the street until he found a cab and was able to get
to the base in the early morning on 17 April 2000, (Petitioner was to
return from leave on the morning of 17 April 2000). Soon after
arriving at work, Petitioner told one of his supervisors about the
possibility of an assault and said he wanted to get a check-up
(enclosure (1)).

e. Petitioner’ s command eontacted the Criminal Investigation :
Division and Family Advocacy. He was then taken to the base hospital
for a sexual assault evaluation. However, Petitioner refused a full
assessment from a rape kit. He states he was extremely upset over the
large number of people that had gotten involved and the chain of
events that was occurring. Petitioner says that he felt that everyone
in his command knew what was going on and he felt frustrated and upset
by the way he was being treated.

f. Petitioner states that he was later seen by a physician from his
battalion, who then recommended an urgent mental health evaluation.
Petitioner claims he just wanted to talk to someone so he was willing
to see a psychiatrist. However, he claims he was not told that there
was a potential result of being separated from the Marine Corps.
Petitioner states that after a 45 minute evaluation from the
psychiatrist, he still had no idea that he had received a diagnosis of
a personality disorder and was being recommended for administrative
separation (enclosure (2)). At this point, he felt betrayed by his
command and he could not trust anyone. Furthermore, Petitioner states
there were several Marines that were making fun of him and making
sexual comments. Petitioner states he received many taunts and also
perceived some of the comments as threats. He states that he felt

extremely isolated and became more distressed and concerned for his

safety. At this point, Petitioner entered an unauthorized absence
Rocket No. 10243-08
(UA} status.

g. While UA, Petitioner claims he called his command from his
parents’ home and was able to maintain contact until he finally
returned, 57 days later. As a result of his UA, on 11 August 2000,
Petitioner received NJP and was recommended for separation due to his
personality disorder. Therefore, he was separated on 15 September
2000 with a general discharge and an RE-4 reenlistment code due to his.
misconduct and diagnosis of a personality disorder (enclosure (3)).

h. On 21 June 2007, Petitioner submitted a request to the Naval
Discharge Review Board (NDRB) for a change to his characterization of
discharge. from general to honorable, his reenlistment code, and his
narrative reason for separation. On 24 March 2008, NDRB considered
Petitioner’s case and granted partial relief. NDRB changed
Petitioner's narrative reason for separation from personality disorder
to “Secretarial Authority”. . Headquarters Marine Corps (HQMC) changed
‘His reenlistment code from RE-4 to RE-3P (enclosure (4)). -However,...
his characterization of discharge was unchanged due to his misconduct
(enclosure (5)).

1. .O0n 21 October 2008, Petitioner. submitted a request to this Board -
to change his characterization of discharge from general to honorable,
his RE-3P reenlistment code to RE-1A, and remove his NUP.

j. In advisory opinions found at enclosures (6) and (7), HOMC
recommended that Petitioner’s request be denied based on their
reasoning that although NDRB changed his reason for separation. from
personality disorder to “Secretarial Authority”, it did not change the
fact that he was administratively discharged due to a personality
disorder. Additionally, HQMC noted that Petitioner’s record indicated
that he received a service proficiency mark average of 3.2 and conduct
mark average of 2.4. Therefore, he did not have the service
proficiency mark average of 3.0 or higher and conduct mark average of
4.0 or higher to rate an honorable discharge.

CONCLUSION:

Upon review and consideration of all the evidence of record the Board
concludes that Petitioner's request warrants partial favorable action.

The Board considers the advisory opinions found at enclosures (5) and
(6), and in light of the fact that NDRB already changed the narrative
reason from personality disorder to “Secretarial Authority,” it
reasons that further relief is warranted by changing the RE-3P
reenligtment code to RE-1. The Board believes that that there were
extenuating circumstances that should have mitigated his UA. However,
the Board also feels that Petitioner could have exercised better
judgment in dealing with his situation than going UA. Therefore, the
Docket No. 10243-08

Board finds that his NUP should remain in his record and his request
for a characterization upgrade is denied based on his UA of 57 days.
In view of the above, the Board recommends the following limited
corrective action.

RECOMMENDATION :

a. That Petitioner's naval record be corrected by changing the RE-
3P reenlistment code, assigned on 15 September 2000, to RE-1.

b. That any material or entries inconsistent with or relating to
the Board's recommendation be corrected, removed, or completely
expunged from Petitioner's record and that no such entries or material
be added to the record in the future.

c. That any material directed to be removed from Petitioner's
naval record be returned to the Board, together with a copy of this
Report of Proceedings, for retention in'a confidential file maintained
for such purposes, with no cross reference being made a part of
Petitioner’s naval record.

_d. That the remainder of Petitioner’s request be denied.

4. It is certified that a quorum was present at the Board's review
and deliberations, and that the foregoing is a true and complete
record of the Board's proceedings’ in the above entitied matter.

ROBERT DBD. Z2SALMAN ' BRIAN -\ GEORGE
Recorder oe Acting Recorder

5. The foregoing action of the Board is submitted for your review and
action.