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USMC | DRB | 2008_Marine | MD0801070
Original file (MD0801070.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20080423
Characterization of Service Received:
Narrative Reason for Discharge: INVOL DIS (BOARD WAIVED) (PATTERN OF MISCONDUCT)
Authority for Discharge: MARCORSEPMAN

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

Summary of Service

Prior Service:
Inactive: USMCR (DEP) 19870917 - 19880327       Active:          19880328 - 19920106

Period of Service Under Review:
Date of Enlistment: 19920107     Period of E nlistment : Years Months     Date of Discharge: 19960405
Length of Service : Y ea rs M on ths 29 D a ys         Education Level:         Age at Enlistment:       AFQT: 33
MOS: 3301 Highest Rank: Fitness R eports:
Awards and Decorations ( per DD 214): Rifle JMU WITH STAR WITH STAR WITH STAR

Periods of UA / CONF : UA: 199 51227-19960111 (15 days)
CONF: 19950705-19950810 (37 days)

NJPs :
19950330 : Art icle 86 (Absent from appointed p lace of duty on 0545, 19950314)
Artic le 134 (Fail to pay just debts)
Awarded : . Susp ended: .

S CMs :

SPCMs:
19950811 : Art icle 86 ( Unauthorized absence), from unit - 1995051 6- 19950703 ( 48 days )
 - 19950514-19950702 ( 50 days )
 Sentence : RIR CONF FOR 75 DAYS, FOP
CA Action 19951212: The sentence is approved and will be executed, but the execution of that part of the sentence extending to confinement in excess of thirty-nine (39) days shall be suspended for a period of one (1) years from the date of this action, at which time, unless sooner vacated, the suspended part of the sentence will be remitted without further action.
CC:

6105 Counseling :
19941102 : For poor physical fitness resulting in failure of the Physical Fitness Test conducted 19941027.
19950112 : For overweight. Current weight: 224 pounds. Maximum allowable weight for your height: 186 pounds.
19950201 : For financial irresponsibility. Failure to pay debts, and writing worthless checks.
19950314 : For failure to make satisfactory progress while assigned to the weight control program. Your current
 weight (224 pounds) on 19950302 shows a 4 pound gain since you last weight-in on 19950215 (220
 pounds). This shows a total lack of self discipline and effort, and it reflects poorly on your overall
performance.




6105 Counseling (cont):

 19950426 : For failure to show any progress while assigned to weight control. Initial weight on 19950106, 224
 pounds with 20.0% fat. Curremt weight 224 pounds with 23.4% body fat. This shows a total lack of
desire and effort towards his goal of 186. Applicant has been assigned to the program for 4 months and
shows an increase not a decrease in weight. This is not the type of leadership we ask from NCO's.

19950426 : For failing the Company Commanders JOB/Wallocker inspection in preparation fo r the CG's inspection.
Applicant's wallocker was totally unsat and he could not fit into his service uniform. Applican t had
 sufficient time to have his uniform's tailored and prepared for the inspection ; applicant made no effort to
prepare himself and displayed poor judgment and a total lack of responsibility. This type of action cannot
and will not be tolerated from an NCO.

19950822 : For misconduct during this enlistment.

Types of Documents Submitted/reviewed

 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) :

Pertinent Regulation/Law

 A. Paragraph 6210, MISCONDUCT , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective
18 August 1995 until 30 January 1997.

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 .

C. 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 86.


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

Applicant’s Issues

 1. Applicant claims he was suffering from P ost Traumatic Stress Disorder (PTSD) and Depression.

Decision


 Date : 20 08 0924          Location: Washington D.C .        R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall PATTERN OF MISCONDUCT .
Discussion

 : ( ) . The Applicant implies he was not responsible for his behavior since he was suffering from both Post Traumatic Stress Disorder and Depression at the time of his misconduct . 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 . Review of the Applicant’s medical record does show in November 1994 the Applicant self-referred himself for a mental he alth consultation because he states he was suffering from depression which resulted from a May 1994 accusation of rape. Although he was cleared of the charges by November 1994, the Applicant claims he suffered from interim depression during the six months he was under investigation . His Primary Care Physician writes h e appears to be suffering from situation stre ss and recommends he be seen at the Mental Health Unit (MHU) . The MHU doctor writes “ although the Applicant reports an angry mood, his judgment is intact and his insight fair. ” The MHU doctor schedules a follow-up appointment which the Applicant does not keep. At this time the Applicant receives his first 6105 retention warning counseling during this enlistment for failing the USMC physical fitness test .

 In January 1995 , the Applicant sees a doctor because he is still suffering from emotional distress and notices he lacks the energy and ability t o concentrate that he once had. The command then issues him a 6105 retention warning counseling because he is 35 lbs overweight. Between February 1995 and August 1995, he is counseled for financial irresponsibility, failure to make progress on weight loss, failing a wall locker inspection and for misconduct. The Applicant enters into an unauthorized absence status in March 1995 and upon return receives NJP.
The Applicant again enters into an unauthorized absence status from 16 May 1 995 to 3 July 1995 . When he is apprehended , he cuts his wrists. He is diagnosed with Adjustment Disorder and Depression. The doctor states “should the Applicant present with behavioral problems in the general population , they should be dealt with as the disciplinary problems that they are.” His assessment ends with recommendations that the Applicant should seek out therapeutic treatment for his alcohol abuse and personal problems. November 1995 he again was seen by MHU since he was depressed over his fiancée’s alleged infi delity. The doctor writes “ the Applicant “ shows no signs of psychosis , he acknowledges responsibility for his behavior, his insight was fair; judgment and impulse-control were adequate. ”

While it is documented the Applicant was treated for depression, the medical reports all state that the depression was episodic due to situaltional stress vice chronic. Medical officials recommended that he seek counseling , but he is not deemed a danger to himself or others . No where is there a recommendation that he be expeditiously discharged for either PTSD, Personality Disorder or suicidal tendencies. Additional ly, t here is no evidence in his medical records he was ever prescribed prescription drugs to treat his depression. More importantly , the MHU doctors state the Applicant is responsible for his behavior. Considering the fact the Applicant’s first enlistment was marred by similar conduct (UA and weight control issues) , it is not reasonable to assume that his subsequent misconduct was a result of the allegations of rape and the resultant episodic depression. The Board determined the claims of PTSD and depression were not strong enough to mitigate the Applicant’s misconduct and an upgrade would be inappropriate.

After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Record, Discharge Process and evidence submitted by the Applicant, the Board found

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 or is referred to a court-martial fo r 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 other medical related reasons. ” 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 special 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. The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

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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