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USMC | DRB | 2008_Marine | MD0801653

Original file (MD0801653.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20080702

Characterization of Service Received:

Narrative Reason for Discharge:

Authority for Discharge: MARCORSEPMAN

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

Summary of Service

Prior Service:
Inactive: USMCR (DEP) 20010327 - 20010603               Active:

Period of Service Under Review:
Date of Enlistment: 20010604     Period of E nlistment : Years Months     Date of Discharge: 20020723
Length of Service : Y ea r M on th 20 D a ys          Education Level:        Age at Enlistment:
AFQT: 42 MOS: 0621       Highest Rank: Fitness R eports:
Proficiency/Conduct M arks (# of occasions):       ( ) / ( )
Awards and Decorations ( per DD 214): Rifle

Periods of UA / CONF : NJP : S CM : SPCM: CC:

6105 Counseling :
- 20020201 : For Counsel ing this date concerning the following deficiency - It that SNM has an Adjustment Disorder,
and will continue to experience intermittent symptoms that will impair SNM’s ability to function
effectively in the military environment .

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 The Marine Corps Separation and Retirement Manual, MCO P1900.16F), effective 1 September 2001 until Present, paragraph 6204, DEFECTIVE ENLISTMENT AND INDUCTION .

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 .

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

Applicant’s Issues

1. Properly disclosed information to recruiter that was used to discharge me.
2. Post service conduct.

Decision

Date: 20 08 1113 Location: Washington D.C . R epresentation :

By a vote of the Characterization shall .

By a vote of the Narrative Reason shall .

Discussion

: ( ) RELIEF WARRANTED. The Applicant contends his discharge was improper because upon enlisting into the Marine Corps he informed his recruiter he had seen a childhood counselor for “being Hyper” and this information was used in the discharge proceedings. 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. The re cord reflects the Applicant underwent a mental health evaluation at the Robert E. Bush Naval Hospital, Twenty - nine Palms, California , on 29 January 2002 which confirmed the diagnosis of Adjustment Disorder , as evidenced by the Applicants report of experiencing depression, tearfulness, insomnia, anxiety, frequent crying, poor concentration , recurrent suicidal ideation and binge eating until vomiting. He also admitted to a history of psychotropic medication use which included Clonidine, Prozac and Zoloft. It was noted the Applicant had fraudulently enlisted because of failure to report his psychiatric history at MEPS. The medical psychologist recommended expeditious administrative separation processing of the Applicant because he continue d to experience intermittent symptoms impair ing his ability to function in a military environment. Based on this recommendation the Applicant was administratively separated with a “G eneral ( U n der H onorable C onditions) ” .

T he Board determined there was sufficient evidence to administratively process the Applicant for fraudulent entry into the military. The review revealed t he Applicant completed a Report of Medical H istory form, dated 27 March 2001, and checked “no” on question #16 – “H ave you ever been treated for a mental condition? ” He also checked “no” on question #21 – “ Have you ever consulted or been treated by clinics, physicians, healers or other practitioners in the past 5 years? ” The Board found the documentation and statements provided for review indicate d the Applicant deliberately misrepresented his me ntal condition during the enlistment process, including the omission or concealment of facts which, if known at the time would have reasonably been expected to preclude, postpone, or otherwise affect the Marine’s eligibility for enlistment or induction. The statement the recruiter told him no t to divulge this information is not persuasive since the Applicant should have known providing false information on an official document is fraudulent per se . Based on the aforementioned evidence, n o other narrative reason other than fraudulent entry more clearly describes the circumstances surrounding the Applicant’s processing for an administrative separation. However, the Board determined the Applicant’s mental condition , lack of documented misconduct, and post service conduct was sufficient to mitigate the fraudulent entry in this case and voted to upgrade the characterization of service to “H onorable ” .

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 or for any basis wherein an Other Than Honorable Discharge is authorized, 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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USMC | DRB | 2008_Marine | MD0801653

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