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USMC | DRB | 2005_Marine | MD0500152
Original file (MD0500152.rtf) Auto-classification: Denied


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

ex-LCpl, USMC
Docket No. MD05-00152

Applicant’s Request
The application for discharge review was received on 20041029. The Applicant requests the characterization of service received at the time of discharge be changed to honorable and the reason for the discharge be changed to “medical discharge.” The Applicant requests a personal appearance before a traveling panel in Colorado Springs or Denver, CO. The Applicant was advised that the Board does not travel, all hearings are held in Washington, D.C. and that his case would first receive a documentary record review. The Applicant listed the Colorado Division of Veteran Affairs as his representative on the DD Form 293. Subsequent to submitting the application, the Applicant obtained representation from the Disabled American Veterans.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050228. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB. The Board’s vote was four to one that the character and narrative reason of the discharge shall not change. The discharge shall remain: GENERAL (UNDER HONORABLE CONDITIONS)/PERSONALITY DISORDER, authority: MARCORSEPMAN Par. 6203.3

PART I - APPLICANT’S ISSUES AND DOCUMENTATION


 Issues, as stated

 Applicant’s issues, as stated on the application:

1. “My military service record was good up until my Command became aware of my medical condition which I am 100% service connected for by the Dept. of Veterans Affairs.”

Additional issues submitted by Applicant’s counsel/representative (DISABLED AMERICAN VETERANS):

 2. “After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of evidence assembled for review, we continue to note the contention of the appellant in his request for a discharge upgrade of his current General, Under Honorable Conditions to that of Honorable.

The FSM served on active service from October 20, 1997 to August 27, 1999 at which time he was discharged by reason of Personality Disorder.

The FSM contends the current discharge is improper because his service was of an honorable nature until his Unit became aware of the applicant’s medical condition.

This creates a need for a review of the application of the standard, for the Board to determine that the applicant’s discharge was improper. The Board will determine which reason for discharge should have been assigned based upon the facts and circumstances before the Board, including the service regulations governing the reasons for discharge at that time, to determine whether relief is warranted. See, SECNAVIST 5420.174 D, Sect. 407, part 4.

As the representative, we ask that consideration be given to equitable relief, as this is a matter that involves a determination whether a discharge should be changed under the equity standards, to include any issue upon which the applicant submits to the Board’s discretionary authority, under SECNAVIST 5420.174D. This review is to include discriminatory acts, such as mis-application of the evidence to improperly discharge. The evidence of record reflects the primary diagnosis of the FSM was Post Traumatic Stress Disorder. Meaning this is and was the predominant psychiatric disability, which should have been referred to the Medical Evaluation Board for review on the Fitness Standard. But instead it was ignored because it was easier for the Unit to use the secondary and less predominant personality disorder to achieve an Administrative Discharge.

We ask for the Board’s careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision. We believe a change of discharge is required under the law and request that once and Honorable discharge be established that the case be referred to the Navy Board for Corrections for an initiation of the Medical Evaluation Board process. These issues do not supersede any issues previously submitted by the applicant.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Letter from DVA dated October 28, 2003
DVA Rating Decision dated November 6, 2003 (6 pp.)
Five pages from Applicant’s medical record

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                970613 - 971019  COG

 Period of Service Under Review :
Date of Enlistment: 971020               Date of Discharge: 990827

 Length of Service (years, months, days):

         Active: 01 10 08
         Inactive: None

 Age at Entry: 18                          Years Contracted: 5

 Education Level: 12                        AFQT: 65

 Highest Rank: LCpl                         MOS: 6337

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.4 (3)                       Conduct: 4.4 (3)

 Military Decorations: None

 Unit/Campaign/Service Awards: NUC

 Days of Unauthorized Absence: None

 Character, Narrative Reason, and Authority of Discharge (at time of issuance):

GENERAL (UNDER HONORABLE CONDITIONS)/PERSONALITY DISORDER, authority: MARCORSEPMAN Par. 6203.3.

 Chronological Listing of Significant Service Events :

990626:  Admitted to Mental Health Unit of NMC, San Diego.

 990707:  Medical evaluation by a military psychiatrist concluded that the Applicant’s personality disorder was so severe that his ability to function effectively in the military environment was significantly impaired. Recommended for expeditious administrative separation. Posed a continuing risk of harm to himself and others if retained in the USMC.

         AXIS I: PTSD, Panic attacks
        
         AXIS II: Personality Disorder NOS with narcissistic and dependent features

         AXIS III: History of premature atrial contractions
990712:  Counseled for deficiencies in performance and conduct. [UA from place of duty on numerous accounts. Failure to follow orders.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
990712:  Applicant notified of intended recommendation for discharge under honorable conditions (general) for the convenience of the government due to a personality disorder.

990712:  Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation and to submit a statement.
990715:  Applicant’s statement.

990715:  Applicant advised of rights, that the lowest characterization possible was under other than honorable conditions, and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an administrative discharge board and submit a statement. [There is no indication that an administrative discharge board was held.]
990716:  Applicant notified of intended recommendation for discharge under honorable conditions (general) for the convenience of the government due to a personality disorder, based upon your panic attacks associated with PTSD. Notified that the lowest characterization possible was under other than honorable conditions.
990716:  Commanding Officer recommended discharge under honorable conditions (general) for the convenience of the government due to a personality disorder, based upon a diagnosed personality disorder as evidenced by psychological evaluation.

990816:  GCMCA [CG, 3d MAW] directed the Applicant's discharge under honorable conditions (general) for convenience of the government due to a personality disorder.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19990827 with a general (under honorable conditions) for convenience of the government due to a personality disorder (A and B). The Board presumed regularity in the conduct of governmental affairs (C). After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (D and E).

Issues 1 and 2. Medical evaluations conducted prior to Applicant’s discharge determined that he possessed a personality disorder and suffered from post-traumatic stress disorder. Competent medical authority, however, recommended that he be administratively processed for separation as soon as possible for a personality disorder since he was judged to represent a continuing risk to himself and others if retained in the United States Marine Corps. The decision to pursue administrative vice disability separation was within the discretion of the Commanding Officer under applicable regulations. Accordingly, Applicant’s narrative reason for discharge was determined to be proper and equitable. Relief denied.

 A characterization of service of under honorable conditions (general) is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record. T he Applicant’s service was marred by an adverse counseling entry on one occasion, a documented lack of desire and ability to perform to Marine Corps standards, and by the threat his actions posed to the safety of his fellow Marines. Marines separated by reason of convenience of the government may be properly and equitably assigned a characterization of service under honorable conditions (general) regardless of the Marine’s average conduct and proficiency markings. The Applicant’s conduct reflects his disobedience of the orders and directives, which regulate good order and discipline in the naval service, and falls short of that required for an honorable characterization of service. An upgrade to honorable is inappropriate. Relief denied.

The Applicant’s VA Rating Decision does not refute the propriety and equity of his discharge. The Applicant’s discharge characterization accurately reflects his service to his country. Normally, to permit relief, an inequity or impropriety must have existed during the period of enlistment in question. No such inequity or impropriety is evident during the Applicant’s enlistment. Additionally, there is no law, or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time, hardship, or good conduct in civilian life, subsequent to leaving the service. Relief not warranted.

The Applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received at the NDRB within 15 years from the date of his discharge. Representation at a personal appearance hearing is recommended but not required.


Pertinent Regulation/Law (at time of discharge)

 A. Paragraph 6203, CONVENIENCE OF THE GOVERNMENT, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 18 Aug 95 until 31 August 2001.

 B. Table 6-1, Guide for Characterization of Service, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 18 Aug 95 until Present.

 C. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

D. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety .

 E. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity .

PART IV - INFORMATION FOR THE APPLICANT
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 Directive 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Directive. You should read Enclosure (5) of the Directive 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 Directive 1332.28 and other Decisional Documents by going online at “ http://Boards.law.af.mil” .

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


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