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USMC | DRB | 2005_Marine | MD0501424
Original file (MD0501424.rtf) Auto-classification: Denied


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
 DISCHARGE REVIEW
DECISIONAL DOCUMENT
FOR OFFICIAL USE ONLY

ex-LCpl, USMC
Docket No. MD05-01424

Applicant’s Request
The application for discharge review was received on 20050823. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable. The Applicant requests a documentary record discharge review. The Applicant did not designate a representative on the DD Form 293.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 20060524. After a thorough review of the available 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 unanimous that the character of the discharge shall not change. The discharge shall remain general (under honorable conditions) by reason of convenience of the government due to condition not a disability.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION


Issues, as stated

Applicant’s issues, as stated on the application and/or from an attached document/letter to the Board:

 “To Whom It May Concern:

This statement is to address the reasons for which I believe that I my discharge from the United States Marine Corps was inequitable. On 11 October 2002 I was assigned to 1 st Radio Battalion, U.S. Marine Forces Pacific. I was having a very hard time adjusting to my first duty station and did have some disciplinary problems. My Platoon Commander, LT R_ O_ noted these problems and still recommended an honorable discharge. My Officer in Charge, Warrant Officer G_ A_ referenced my disciplinary problems, and stated that I was a model Marine while in his command, and also recommended an honorable discharge.

Issue 1: Throughout my 20 months of service in the Marine Corps I did have some disciplinary problems and written counselings, but was only given non-judicial punishment on one occasion, 18 January 2003. I believe that my discharge was based on this one incident. (Enclosure 5)

Issue 2: Two Marine Corps Officers, My Platoon Commander and Officer in Charge, both recommended that I receive an Honorable Discharge, even after noting my Non-Judicial Punishment and other disciplinary problems. (Enclosures 2 & 3)

Issue 3: Two Naval doctors, Commander M_ and W.D. D_ said that I was fit for full duty. W.D. D_, the Battalion Surgeon, recommended that I be retained in the Marine Corps. (Enclosure 4)

Sincerely,
[signed]
S_ H_(Applicant)
(social security number deleted) ”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Applicant’s DD Form 215
Nine pages from Applicant’s service record
Copy of bachelor of arts diploma, with note, dtd August 14, 2001 (2 pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    20010814 - 20011028      COG
          Active: None
Period of Service Under Review :
Date of Enlistment: 20011029             Date of Discharge: 20030502

 Length of Service (years, months, days):

 Active: 01 06 04
          Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: None
         Confinement:              None

 Age at Entry: 22

 Years Contracted: 5

 Education Level: 16                                 AFQT: 91

 Highest Rank: LCpl                                  MOS: 2621

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: NA*                                    Conduct: NA*

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214) : National Defense Service Medal, Rifle Marksman Badge

*Not Available


 Character, Narrative Reason, and Authority of Discharge (at time of issuance):
GENERAL (UNDER HONORABLE CONDITIONS)/CONDITION NOT A DISABILITY, authority: MARCORSEPMAN Par. 6203.2.

 Chronological Listing of Significant Service Events :

021216:  Medical evaluation at NMC Kaneone, Mental Health Department by D. J. H_ Cdr MC USN, Psychiatrist.
          Assessment: Not actively suicidal, homicidal. Occupational problem. Also recurrent depressed moods x 5 years, consider dysthymia, R/O MDD, current adjustment disorder. Consider GI issue traumatic in nature.
         Plan: Fit for full duty. Not suicidal or homicidal.
021218:  Medical evaluation at NMC Kaneohe, Mental Health Department by D. J. H_ Cdr MC USN, Psychiatrist.
          AXIS I: Eating disorder not otherwise specified.
 Depressive disorder not otherwise specified.
Occupational problem.
          Recommendation: Fit for full duty. Recommend admin separation for convenience of the government for a medical condition not a disability (MARCORSEPM 6203.2). Not suicidal/homicidal.
         Note: Has eating disorder which is very resistant to any treatment efforts. Eating in chow hall will exacerbate it and for that reason COMRATS are recommended.

030107:  Medical evaluation at NMC Kaneohe, Mental Health Department by D. M_ Cdr MC USN.
         F/u: “...stopped taking paxil because she does not want to feel better. She is very angry with USMC/NCOs. Assuming helpless posture. Won’t eat. Wants out of USMC now, not in a few weeks or months. Not with any SI’s – wants out of USMC only to go home.... Dismisses all therapeutic recommendations.”
         Plan: To see Bn Surgeon to follow up on recommendation for administrative separation. Not suicidal or homicidal. Fit for full duty and responsible for her actions. She may return to psychiatry any time she wishes to engage in therapy and/or try to feel/do better.

030115:  NJP for violation of UCMJ, Article 92 (2 specs):
         Specification 1: In that LCpl H_(Applicant), on active duty, 1 st Radio Battalion, having knowledge of a lawful verbal order issued by Sgt L_ to stop reading non-professional reading material while on duty did on or about 3 January 2003 fail to obey the same by wrongfully ignoring said verbal order.
         Specification 2: In that LCpl H_(Applicant), on active duty, 1 st Radio Battalion, having knowledge of a lawful verbal order issued by Sgt L_ to surrender the fictional novel she was reading while on duty, did, on or about 3 January 2003 fail to obey the same by wrongfully ignoring the said verbal order and refusing to surrender the above mentioned fictional novel.
 Violation of UCMJ, Article 91: In that LCpl H_(Applicant), on active duty, 1 st Radio Battalion, MCBH, on or about 3 Jan 03, was disrespectful in deportment toward Sgt L_ a noncommissioned officer, then known by the said LCpl to be a superior noncommissioned officer, who was then in the execution of his duties, by being belligerent in her behavior and language.
          Award: Forfeiture of $323 per month for 1 month, restriction and extra duty for 14 days. Forfeiture suspended for 6 months. Not appealed.

030121:  Counseling: Advised of deficiencies in performance and conduct (Poor performance and misconduct, specifically SNM failure to pass the Basic Line Operator’s Course (BLOC) within the standards set by the T&R Manual, MCO 3500.41. SNM was given classroom instruction and practical application on all subjects, which SNM failed to show proficiency. SNM failed the Basic Field Phase Exam (63%) and the Basic Communication Exam (68%), of which SNM need to pass with 80% or greater. In addition to these failures, SNM has repeatedly conducted actions that are unprofessional and unbecoming of any Marine. The actions include disrespect, belligerence, AWOL, refusing to train, poor attitude and failure to adhere to orders.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

030203:  Medical follow up with D. J. M_, Cdr, MC, USN, Psychiatrist: Assessment: Eating disorder, not otherwise specified, severe. Meets all criteria of Anorexia N. except not enough weight loss. Depressive disorder NOS. Recommendation: Again recommend administrative separation for convenience of the government IAW MARCORSEPMAN 6203.2. Don’t really have full capability to treat this disorder in military.

030205:  Counseling: Advised of deficiencies in performance and conduct (SNM’s reported severe eating disorder, not otherwise specific as indicated by a medical officer diagnosis of 021217 and again on 030203.), necessary corrective actions explained, sources of assistance provided, and advised being processed for administrative discharge action.
030227:  Applicant notified of intended recommendation for general (under honorable conditions) discharge by reason of convenience of the government due to a physical condition not a disability. The factual basis for this recommendation was diagnosis of severe eating disorder, as supported by psychiatrist D. J. M_ Cdr MC USN evaluation. Applicant informed the least favorable character of service possible is general (under honorable conditions).
030314:  Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

030320:  Battalion Surgeon, 3 rd Battalion 3 rd Marines, recommended Applicant not be separated.
         LCpl H_(Applicant) has a long history of social disturbance and rehabilitation. She began treatment with CDR M_ 16 December 2002 for anxiety and possible eating disorder. Dr M_ subsequently diagnosed LCpl H_(Applicant) with two nonspecific disorders for eating and depressive disturbance. Additionally, she had an occupational problem resulting in and Axis I diagnosis.
 LCpl H_(Applicant) has subsequently transferred to a new company within her Battalion and no longer feels that she has an occupational problem. She reports no symptoms of depression. She is engaging and relating well. She shows good insight and judgment. I find no evidence of psychiatric symptoms or psychopathological process at this time with one caveat. SNM demonstrates a modest aversion to certain foods and limits her dietary intake, however does not fit the parameters of anorexia and/or bulimia.
LCpl H_(Applicant) has recently been evaluated by Dr M _, psychiatry and was determined to be “Fit for full duty”, but was recommended for administrative separation for “convenience of the government”. It is my opinion that the SNM is fit for full duty and should not be separated. Furthermore, I have instructed SNM to follow up with CDR M_ so that he may evaluate her in light of these new circumstances.
I do not concur with recommendation for administrative separation.

 030326:  Medical evaluation at 1 st RAD, BN, BAS by D. J. M_, CDR, MC, USN, Psychiatrist: Assessment: Eating disorder, personality disorder not otherwise specified with borderline traits. Plan: Fit for full duty. In addition to eating disorder has personality disorder of such severity as to impair her ability to serve effectively and an administrative separation is warranted IAW 6203.3. In addition to 6203.2 with 6105 counseling.

030327:  Medical evaluation by S. E. J_, LT, MC, USNR, General Medical Officer: Applicant here for follow up after mental health/Cdr M_ eval yesterday. Pt concerned that diagnosis is incorrect (Pers Dis, Eating Dis.) and would like another opinion. Instructed pt to call KBay MH and ask for soonest appointment so she can close case with Cdr M_ and ask for a new provider. Follow up NAS at next appointment with new MH provider. Fit for full duty.

030418:  Commanding Officer, 1 st Radio Battalion, recommended Applicant’s general (under honorable conditions) discharge by reason of convenience of the government due to a physical condition not a disability. The factual basis for this recommendation was diagnosis of severe eating disorder, as supported by Cdr M_ (psychiatrist) evaluations of 26 Mar 03, 3 Feb 03, 7 Jan 03, 18 Dec 02 and 16 Dec 02. Although this Marine is being evaluated for possible personality disorder the basis for this separation request is only “eating disorder” (see 26 March medical evaluation).
The basis for this recommendation is her diagnosis of severe Eating Disorder, as supported by CDR M_ (Psychiatrist) evaluations of 26 Mar 03, 3 Feb 03, 7 Jan 03, 18 Dec 02 and 16 Dec 02.
Radio Bn Surgeon recommended administrative separation in a letter dated 13 Jan 03.
3 rd Marines Surgeon recommended this Marine not be separated based on favorable feedback during a 20 Mar evaluation.
Personal History.
Jan 03. Received company-level NJP (two Art 92 violations)
Dec 02. Failed 3 of 4 academic tests for Basic Line Orientation Course (“BLOC” based on MCO 3500.41, SIGINT Training and Readiness). During the 17-month history of the BLOC, only 2 of 140 Marines have failed the BLOC.
Received the following formal counseling:
12 Nov (lack of effort)
22 Nov (unwillingness to follow procedures)
02 Dec (failing BLOC Test)
11 Dec (disrespect to SNCO and NCO, and Art 92)
13 Dec (failing BLOC test)
16 Dec (Art 92 x 3, and being removed from Field-Ex due to refusal to eat MRE’s)
30 Dec (failure to refrain from chewing gum in uniform)
30 Dec (disrespect and Art 92 toward HN1)
30 Dec (failure to go to medical lab for additional testing as directed by BAS)
06 Jan (belligerence)
During the first six months of this Marine’s tenure at this command, she elected not to submit a Personal Financial Sheet (PFS) to the Special Security Officer (SSO) in connection with her access to sensitive compartmented information (SCI). Submitting financial statements is not compulsory, but failure to do so is grounds for suspension of access to SCI. During late Mar 03 after being informed she was being recommended for a “General” discharge, this Marine submitted a PFS. Regardless, based on medical evaluations and legal history, this Marine’s access to SCI was suspended Dec 02 and she is not able to work in her 2621 MOS. She has been working as a Fiscal Clerk and likely will earn an 0100 MOS via OJT if not discharged.
During the period Dec 02 - late Mar 03, this Marine wanted to be discharged ASAP and pressed the issue on multiple fronts. On 17 Mar, she learned she was being recommended for a General discharge characterization (would lose GI Bill benefits). Subsequent to 17 Mar, her attitude changed; now she desires to be retained on active duty.
Shortly after 27 Mar, this Marine requested a psychiatric “second opinion.” In accordance with ref (b) and after seeing CDR M_ to ‘close out’ her file 16 April, this Marine elected not to seek a second opinion and is content to continue with CDR M_. Hence, this command is submitting the package without the “second opinion.”
As a result of her poor performance while a member of this command, I cannot categorized this Marine with others whose contributions have been “Honorable.” The Respondent’s medical condition clearly indicates unsuitability for future military service. Recommend Respondent be expeditiously discharged. ”
030425:  Separation physical examination: Applicant found physically qualified for separation.

030425:  GCMCA, Marine Corps Base Hawaii directed the Applicant's general (under honorable conditions) discharge by reason of convenience of the government due to a physical condition not a disability.
Service Record was missing elements of the Summary of Service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030502 by reason of convenience of the government due to condition not a disability (A and B) with a service characterization of general (under honorable conditions). After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D). The Board presumed regularity in the conduct of governmental affairs (E).

 The Applicant contends that, during her 20 months in the Marine Corps, she did have some disciplinary problems but that she was only subject to nonjudicial punishment on one occasion and thus she believes that her discharge was “based on this one incident.” Further, the Applicant implies that her discharge was inequitable because her platoon commander and officer-in-charge recommended she receive an honorable discharge. When a Marine’s service has been honest and faithful, it is appropriate to characterize that service as honorable. A general discharge 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. The Applicant’s service was marred by nonjudicial punishment proceedings for violations of Articles 91 and 92 of the UCMJ. The Applicant’s violations of Articles 91 and 92 of the UCMJ are considered serious offenses. In addition, the Applicant was counseled and issued retention warnings for poor performance, misconduct, unprofessional conduct, belligerence, unauthorized absence and refusing to train. The Applicant’s conduct, which forms the primary basis for determining the character of her service, reflects her willful failure to meet the requirements of her contract with the Marine Corps and falls far short of that required for an upgrade of her characterization of service. Relief is not warranted.

The Applicant implies that her discharge was inequitable because medical authority indicated she was “fit for full duty” and that the Battalion Surgeon recommend her retention. Reference (A) indicates that Commanding Officers may initiate separation proceedings by reason of physical condition not a disability when a Marine has any physical condition which interferes with duty as determined by the commanding officer and medical officer when that conditions is not considered a physical disability. The Commanding Officer recommended the Applicant for separation based on her severe eating disorder based on the recommendation of competent medical authority on 20030203. Relief on this basis is denied.

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


Pertinent Regulation/Law (at time of discharge)

 A. Marine Corps Separation and Retirement Manual, (MCO P1900.16F, effective
01 September 2001 and Present), paragraph 6203, CONVENIENCE OF THE GOVERNMENT.

 B. 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 91, insubordinate conduct or Article 92, failure to obey order/regulation.

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

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

E. 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 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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