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USMC | DRB | 2007_Marine | MD0701191
Original file (MD0701191.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20070828  
Characterization of Service Received:
Narrative Reason for Discharge: CONDITION NOT A PHYSICAL OR MENTAL DISABILITY   
Authority for Discharge: MARCORSEPMAN 6203.2

Applicant’s Request:     Characterization change to:
                           Narrative Reason change to:

Summary of Service

Prior Service:
 Inactive: USMCR (DEP)     19940722 - 1995022 0              Active:          19950221 - 19981018
Period of Service Under Review:
 Date of Enlistment: 19981019               Period of enlistment : Years             Date of Discharge: 199 9 1118
Length of Service : Yrs Mths 00 D ys      Education Level:         Age at Enlistment:       AFQT: 5 8
MOS: 6672 Highest Rank:                                    Fitness reports:
Proficiency/Conduct marks (# of occasions):      4.5 ( 3 )/ 4.1 ( 3 )
 Awards and Decorations ( per DD 214): Rifle , Pistol

Periods of UA /Confinement :

Retention Warnings:
         19990 6 03 : For failure to maintain Marine Corps standards .
         19990714 : For physical condition that interferes with duty but is not considered a disability, specifically, depressive symptoms in the context of psychosocial stressors .

Types of Documents Submitted

 Related to Military Service:      DD 214:          Service and/or Medical Record:            Other Records:

Related to Post-Service Period:         
         Employment:                        Finances:                          Education /Training :     
         Health/Medical Records:                   Substance Abuse:                           Criminal Records:       
         Family/Personal Status:                   Community Service:                References:              
        
Additional Statements From Applicant:             From Representat ion :              From Member of Congress:
Other Documentation (Describe)



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

Applicant’s Issues

 1. Lack of command support after death of son led to inability to perform duties

Decision

Date: 20 08 0124             Location: Washington D.C         R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall CONDITION NOT A DISABILITY .
Discussion

Issue 1 ( ). The Applicant re-enlisted in October, 1998. In December, her 5 ½ month old son was found not breathing by his daycare provider, could not be revived, and apparently died of Sudden Infant Death Syndrome. In July 1999 the Head of the Psychology Department opined that the Applicant was not fit for full duty because of a Mood Disorder and the experiencing of pre-existing depressive symptoms, and recommended that she be discharged due a condition not a dis ability. The Applicant was counseled regarding this as required by regulation, and subsequently determined to not have improved. After proper notification and election of rights she was discharged on that basis with a characterization of service as general (under honorable conditions). The Applicant contends that her command took no action to assist her in dealing with the trauma of such a sudden loss, such as moving out of base quarters (which she desired because its association with her son), obtaining a death certificate, and seeking medical assistance to deal with her increasing depression. The evidence in the record indicates that the Applicant’s command did try to assist her in dealing with the trauma of her loss, to include granting leave to travel home for her son’s burial, sending command representatives to the funeral to assist as needed, advising her of counseling available, directing her to attend counseling appointments after discovering that she had missed appointments, and forgoing possible disciplinary action over unauthorized absences (a minor pattern established prior to the death of her son) and suspicion regarding misappropriation and disposition of property because of her personal circumstances. The record also indicates that the Applicant , prior to the death of her son, had been informally counseled about her unauthorized absences, received an eviction notice from base quarters (in which the command supported her efforts to remain) , received two moving violations aboard the installation for which she received, with command support, reinstatement of limited driving privileges. Finally, while inquiring about one, the record indicates that the Applicant did not submit request for humanitarian discharge, did not submit a request to move out of base quarters and never, prior to her discharge process, bring to the command’s attention any issues mental stress or trauma related to living in those quarters. An honorable characterization of service is warranted when the quality of a member’s service generally meets the standard of acceptable conduct and performance for naval personnel, or is otherwise so meritorious that any other characterization of service would be clearly inappropriate. A general (under honorable conditions) discharge is warranted when the quality of the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service record. While the Board certainly understood how and why the Applicant’s, or any Marine’s, regular performance of duties could be directly affected by such a personal loss, it found the Applicant’s claims to be inaccurate. In light of the relatively short period of service under review, the disciplinary issues identified before the death of her son, and the inaccurate claims the Applicant made, the Board determined that a characterization of service as general (under honorable conditions) was warranted .

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, Medical and Service Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found that

Pertinent Regulation/Law

 A. Marine Corps Separation and Retirement Manual, (MCO P1900.16E, effective 18 Aug ust 19 95 until 31 Aug ust 2001), paragraph 6203, CONVENIENCE OF THE GOVERNMENT .

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 to the Joint Service Review Activity, OUSD (P&R) PI-LP, The Pentagon, Washington, DC 20301-4000 . 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, provi ded 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 grante d 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.
Employmen t / 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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