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USMC | DRB | 2006_Marine | MD0601025
Original file (MD0601025.rtf) Auto-classification: Denied

ex-PVT, USMC
MD06-01025

 Current Discharge and Applicant’s Request :

Application Received:                               20 060731
Narrative Reason for Separation:                          
Character of Service:                                GENERAL UNDER HONORABLE
Discharge Authority :                                MARCORSEPMAN 6203.3
Last Duty Assignment/ Command at Discharge:       3rdbn 11thmar magtftc twentynine palms ca

Applicant’s Request:
          Narrative Reason change to:               JF V 1 - NO N DISABLING PHYSICAL
         Characterization chang e to:               
         Review Requested :                          
Representation:                                             


Decision:

Date of Decision:                                            200706 14
 Location of Board:                                  Washington D.C.
Complete Service Record:                                    YES
Complete Medical Record:                           YES
Complete Discharge Package:                        YES
Regarding propriety, the Board found the discharge:     
Regarding equity, the Board found the discharge:         EQUITABLE

By a vote of the Characterization shall GENERAL (UNDER HONORABLE CONDITIONS)
By a vote of the Narrative Reason shall PERSONALITY DISORDER


Summary of Service :

Prior Service:
 Inactive: USMC R (DEP)                               20030725 - 20040222
Active: NONE
Period of Service Under Review :
Date of Enlistment:                                 20040223
Years Contracted :                                   ;      
Date of Discharge:                                  20050302
Length of Service:                                  01 Yrs 00 Mos 10 Days Does not exclude lost time, if any.
Time Lost During This Period:                      29
Days Unauthorized Absence:                         29
Days Confinement:                                   None

Education Level:                                    15
Age at this Enlistment:                                    
AFQT:                                                 63
MOS:                                                   0844
Highest Rate/Rank:                                   PFC

Performance Evaluation Averages (number of marks):
 P roficiency :                                         4.0 (5)
Conduct :                                              3.8 (5)

Awards and Decorations (as listed on the DD Form 214):
RIFLE EXPERT BADGE, GLOBAL WAR ON TERRORISM SERVICE MEDAL, NATIONAL DEFENSE SERVICE MEDAL



Service Record Entries Related to Characterization of Service or Narrative Reason for Separation

20041215 :        NJP for violation(s) of UCMJ:
         Article 86 : UA from 0730 20041101 to 1445 20041129.
         Award: Forfeiture of $ 5 00 for 2 month s , restriction and extra duty for 45 days , reduction to Pvt. Forfeiture, restriction and extra duty suspended for 6 months.
         Not a ppealed.
20050107:        Applicant’s statement expressing desire to separate from the Marine Corps.



Medical Record Entries Related to Characterization of Service or Narrative Reason for Separation
*[ 20041102 ] :     Naval H ospital Twentynine Palms, Mental Health Department . Applicant evaluated by psychiatrist on 20041022, 20041027, 20041206 and 20041207 initially at the request of the A pplicant’s primary care physician. The A pplicant had been seen in the ER on the night of 20041205 secondary to his recent history of self mutilating behavior.
         Diagnosis:
          AXIS I: Adjustment disorder with mixed disturbance of emotion and conduct .
         AXIS II: Personality disorder not otherwise specified with dependent and avoidant features.
         AXIS III: Superficial lacerations both forearms.
         Recommendation: Applicant is deemed fit for processing for administrative separation for personality disorder. Although not considered imminently suicidal or homicidal, the applicant is judged to represent a significant and ongoing risk to self or others due to low impulse control secondary to his personality disorder. Many risk factors for harming self and/or others are present in the military environment and I consider the patient to be dangerous. The applicant is deemed fit to return to duty for immediate processing for administrative separation.

20041205:        Applicant to Emergency Room at Naval Hospital, 29 Palms for suicide attempt. Medications listed: Paxil and Zyprexia.

*        The NDRB notes the date of 20041102 is clearly marked on the letter but is wrong as it notes that mental health physician visits were made on dates before and after the date of the letter.


Elements of Discharge: [ IN VOLUNTARY]

Discharge Process :                                 
Date Notified :                                        20050106
Basis for Discharge :                               

Least Favorable Characterization:                          NOT NOTED IN RECORD
Commanding Officer’s Intended Recommendation :   
Record Supports Narrative Reason :                          YES
Date Applicant R esponded to N otification:                 20050107
Rights E lected at N otification :
Consult with Counsel                      
Administrative Board                      
Obtain Copies                             
Submit Statement(s)                        BUT STATEMENT SUBMITTED 20050107

Recommendation of Commanding Officer (date):     (UNDER HONORABLE CONDITIONS ( 20050120 )
SJA review (date):                                        
Discharge directed by (date):              COMMANDING GENERAL, MARINE AIR GROUND TASK FORCE TRAINING COMMAND (20050225 )
Narrative reason directed :                                  
Characterization directed:                                  (UNDER HONORABLE CONDITIONS)
Date Applicant Discharged:                         20050302



Additional Information Considered by Board

 Type of d ocumentation submitted by t he Applicant and considered by the Board
        Document Type                                        #Pages
 Related to Period of Service Under Review :
          Service/Medical Record :                              1
         Other Period of Service:                                    0
Related to Post-Service Period:
          Community Service :                                   0
         Education :                                           0
         Employment :                                          0
         Health /Medical :                                       2
         Character Statements:                               3
         Criminal Records Checks:                                    0
         Additional Statements from Applicant:             1
Other Documentation      (Describe Below)                 3

Total Number of Pages:                             10

D escription of Other Documentation:
Letter to 3/11 First Sergeant
Statement from 3/11 First Sergeant

Applicant’s Issues, as summarized by the Board:
 1. Misdiagnosed affliction .
 2 Post service.

Decisional Issues:
 The Board accepted Issue s 1 and 2 for consideration.

Issue 1 (Equity). When reviewing a discharge, the NDRB does consider the extent to which a medical problem might affect an Applicant’s performance and ability to conform to the military’s standards of conduct and discipline. The NDRB generally does not consider the circumstances surrounding the Applicant’s stated condition, the implied incorrect diagnosis, nor the medical treatment given to the Applicant to be of sufficient nature to exculpate the Applicant’s misconduct. The Applicant was seen by competent medical authority on four separate occasions resulting in his diagnosis of personality disorder. When a Marine’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions. A general (under honorable conditions) 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 the award of nonjudicial punishment (NJP) on one occasion for a violation of the Uniform Code of Military Justice (UCMJ) Article 86 (UA for 29 days) . The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the Marine Corps and falls far short of that required for an upgrade of his characterization of service. . An upgrade to honorable would be inappropriate.

The documentation and statements provided by the Applicant did not refute the presumption of regularity in this case. The Applicant’s laboratory results on 20041124 do not invalidate an earlier diagnosis received while on active duty. Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question. No such error or inequity is evident during the Applicant’s enlistment. Additionally, there is no law, or regulation, which provides that an unfavorable discharge or narrative reason for separation may be upgraded based solely on a second medical opinion, the passage of time, or good conduct in civilian life, subsequent to leaving the service. Relief denied.

Issue 2 (Equity). The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, there is no law or regulation, which provides that an unfavorable discharge, may be upgraded based solely on the passage of time, good conduct, or favorable endorsements in the civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question. Outstanding post-service conduct, to the extent that 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. The Applicant provided two character statements as documentation of post-service accomplishments and health. The Applicant's efforts need to be more encompassing than those provided. For example, the Applicant could have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, and certification of non-involvement with civil authorities. The Board determined that the documentation provided by the Applicant did not mitigate the circumstances that resulted in the characterization of discharge. Relief denied.

On the DD Form 293 submitted to the NDRB by the Applicant, it was requested that the narrative reason be changed to “JFX1 – Non disabling physical”. The Separation Code and Narrative Reason for Separation on the Applicant’s DD Form 214 is JFX1 Personality Disorder. Upon review of a letter provided by the Applicant the NDRB determined that the Applicant intended to request a change to his Separation Code and Narrative Reason for Separation to “JFV1 Involuntary separation due to a non disabling physical condition”. The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, will change the reason for discharge if such a change is warranted. The summary of service clearly documents that personality disorder was the reason that the Applicant discharged. Since no other Narrative Reason for Separation could more clearly describe why the Applicant was discharged, a change would be inappropriate. Relief denied.

In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Service Record Entries, Medical Record Entries, Elements of Discharge and evidence submitted by the Applicant, the Board found the Applicant’s discharge proper and equitable.

Minority Opinion

 None

Pertinent Regulation/Law

 A. The Marine Corps Separation and Retirement Manual, (MCO P1900.16F ) , effective 01 Sep 2001 until Present, Paragraph 620 3.3 , PERSONALITY DISORDER.

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.

ADDENDUM: Information for the Applicant
Complaint Procedures : 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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction . 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 : Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years from the 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. 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 Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board. 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 Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the Board’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 Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes. Additionally, the Board 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 subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended. The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings. If the action includes either a punitive or administrative discharge for misconduct, 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 “PTSD.” Only the Board for Correction of Naval Records can grant this type of narrative reason change.

Automatic Upgrades - There is no law or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving Naval service. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge 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. Examples of documentation that may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.

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 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.

Board Membership: 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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