DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
2 TUR
Docket No: 3660-11
29 June 2011

 

 

This is in reference to your application for correction of your
naval record pursuant to the provigions of Title 10, United
States Code, Section 1552.

A three-member panel of the Board for Correction of Naval
Records, sitting in executive session, considered your
application on 28 June 2011. The names and votes of the

members of the panel will be furnished upon request. Your
allegations of error and injustice were reviewed in accordance
with administrative regulations and procedures applicable to the
proceedings of this Board. Documentary material considered by
the Board consisted of your application, together with all
material submitted in support thereof, your naval record, and
applicable statutes, regulations, and policies. In addition, the
Board considered the Naval Discharge Review Board (NDRB)
decisional documents, MD07-01266/HER dated 22 October 2008 and
MDO00-00210 dated 31 August 000, copies of which are enclosed.
After caneful and conscieftious consideration of the entire
record, the Board found the evidence submitted was insufficient
to establish the existence of probable material error or
injustice. In this régard, the Board substantially concurred
with the NDRB decisional documents.

In April 1994 you reported your medical history in pre-enlistment
documents in general terms. In this regard, you stated that at
age 14 you were a patient in an adolescent psychiatric ward for
about two months, and at the age of 16 you had seen a
psychiatrist on a weekly basis from September 1990 to August
1992. However, you further reported being in good health and not
taking any medication. During the medical examination you
reported not having any clinical problems or conditions which
also included psychiatric conditions.

You enlisted in the Marine Corps Reserve on 27 June 1995 at age

19 and began a period of active duty on 5 July 1995. You served
for about three months without disciplinary infraction; however,
on 22 October 1995, you failed to return to duty following a
period of liberty. During this period of unauthorized absence
(UA) you checked yourself into a hospital for evaluation due to
your suicidal tendencies. This 36 day period of UA was
terminated on 16 November 1995.

During the period from 4 to 21 December 1995, after undergoing a
psychiatric evaluation, you were diagnosed with a schizotypal
personality disorder. At that time you were strongly recommended
for an administrative separation. The psychiatric report noted,
in part, that you were expected to decompensate, threaten
suicide, and become uncooperative. However, 10 days before
‘administrative processing procedures were started, on 1 January
1996, you began another period of UA, During this period of UA
‘you were declared a deserter. On 24 April 1996 you surrendered
to military authorities, thus terminating the 114 day period of
UA. Shortly thereafter, on 27 April 1996, you received emergency
mental care and treatment for expressing suicidal ideation,
although without a plan.

In May 1996, during a medical evaluation, you again reported your
medical history, but in greater detail and presumably inclusive
of all of your medical and mental examinations. In other words,
in April 1994 you failed to report the extent of your being
hospitalized for psychiatric problems, specifically, paranoia and
suicidal tendencies. You also denied (responded “NO”) ever being
a patient in any type of hospital and consulting or being treated
by clinics, physicians, healers, or other practitioners within
the past five years (1989 to 1994).

On 17 May 1996 you submitted a written request for an other than
honorable discharge in order to avoid trial by court-martial for
the two foregoing periods of UA totalling 150 days. Prior to
submitting this request you conferred with a qualified military
lawyer at which time you were advised of your rights and warned
of the probable adverse consequences of. accepting such a
discharge. Subsequently, your request was granted and the
commanding officer was directed to issue you an other than
honorabie discharge by reason of the good of the service. As a
result of this action, you were spared the stigma of a court-
martial conviction and the potential penalties of a punitive
discharge and confinement at hard labor. On 11 June 1996 you
were issued an other than honorable discharge.

The Board, in its review of your entire record and application
carefully weighed all potentially mitigating factors, such as
your desire to upgrade your discharge. It also considered your
agsertion that you should not have been allowed to enlist because
of your mental health problems, specifically, a schizotypal
personality disorder. Nevertheless, the Board concluded these
factors were not sufficient to warrant recharacterization of your
discharge because of the seriousness of your repeated and lengthy
periods of UA from the Marine Corps during such a short term of
service, and which also resulted in your request for discharge.
The Board believed that had you not began your second period of
UA for 114 days, you could have presumably been processed for
separation based on the recommendation from medical authorities
regarding your mental condition and your misconduct of 36 days of
UA, Although the recommendation of medical authorities is not
binding on the command, an administrative discharge board (ADB)
recommendation for a more favorable characterization of service
is binding. However, your absence negated both the medical
recommendation and the possibility to present your case to an
ADB. Nonetheless, the Board. concluded that your request for
separation because of your misconduct and not for medical reasons
was proper and procedurally correct. Further, in regard to your
assertion, the Board believed that had you disclosed, in detail,
your mental and medical history, a fraudulent entry would not
have occurred. Finally, the Board believed that considerable
clemency was extended to you when your request for discharge to
avoid trial by court-martial was approved. In this regard, the
Board concluded that you received the benefit of your bargain
with the Marine Corps when your request for discharge was granted
and you should not be permitted to change it now. Accordingly,
your application has been denied.

It is regretted that the circumstances of your case are such that
Favorable action cannot be taken. You are entitled to have the
Board reconsider its decision upon submission of new and material
evidence or other matter not previously considered by the Board.
In this regard, it is important to keep in mind that a
presumption of regularity attaches to all official records.
Consequently, when applying for a correction of an official naval
record, the burden is on the applicant to demonstrate the
existence of probable material error or injustice.

Sincerely,

Labelle

W. DEAN *P
Executive Director

Enclosures