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USMC | DRB | 2008_Marine | MD0801689
Original file (MD0801689.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20080806
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) 20030804 - 20040614                Active:

Period of Service Under Review:
Date of Enlistment: 20040615      Period of E nlistment : Years Months     Date of Discharge: 20071011
Length of Service : Y ea rs M on ths 21 D a ys       Education Level:        Age at Enlistment:
AFQT: 77          MOS: 3381         Highest Rank:    Fitness R eports:
Proficiency/Conduct M arks (# of occasions):       ( ) / ( )
Awards and Decorations ( per DD 214): Rifle Pistol

Periods of T ime L ost : 20061222-20061227 (6 days)
20070521- 20070522 (1 day)

NJP :
- 20060509 : Art icle 86 ( UA), 2 s pecifications
Awarded : Susp ended:

- 20061219 : Art icle 86 (UA)
-        Art icle 91 (Disobeyed a noncommissioned officer )
 Awarded : Susp ended:

- 20070601: Article 86 (UA)
-        Article 92 (Failure to obey a lawful order)
-        Awarded: RIR FOP RESTR EPD
-       
S CM : SPCM:

6105 Counseling :

- 20050325 : For academic drop from avionics school .

- 20060517: For NJP for UA .

- 20061219: For NJP for UA and disobeying a lawful order.

- 20070601: for NJP for UA.

- 20070620: for Long S leepers Syndrome (not a disability)
Types of Documents Submitted/reviewed
Related to Military Service:     DD 214:          Service and/or Medical Record:            Other Records:

         - VA Medical 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 P1900.16F), effective 1 September 2001 until Present.

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 s 86, 91 and 92 .


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

Applicant’s Issues

 1. Desires to make use of his educational benefits.
 2. Feels medical problems contributed to his misconduct.

Decision


 Date: 20 08 1204 Loc ation: Washington D.C .         R epresentation :

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

 : ( ) . either which the Board cannot form the basis of relief for the Applicant, or the Board does not have the authority to grant the relief for which the Applicant petitioned. The Applicant is directed to the Addendum , specifically the paragraph concerning , regarding .

: ( ) . The Applicant states his medical condi tion, which was beyond his contr ol, impacted his performance. He provides copies of mental health assessments while on active duty and his VA rating decision.
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 Applicant’s r ecord of service was marred by 5 retention warnings for : A n academic drop ; multiple periods of UA ; disobeying a lawful order ; and Long
S leeper Syndrome. Additionally, the Applicant was subject to 4 NJP’s for violations of the Uniform Code of Military Justice (UCMJ): Article 86 (UA) , Article 91( D isobeying a noncommissioned officer) , and Article 92 ( F ailure to obey a lawful order) . As a result of the Applicant’s established misconduct he received an administrative discharge based on a Pattern of Misconduct.

The Applicant was also noted as being diagnosed with Long Sleeper Syndrome, a condition which is not considere d a disability. He provide d medical reco rds which document ed he was seen b y men tal health professionals from 14 July 2006 until , at a minimum , January 2007 . He was diagnosed with s ocial phobia, hypersomnia , and a general anxiety disorder. The Applicant was given Zoloft for the depression and Ambien for insomnia . In a 25 October 2006 mental health consultation, his military medical doctor states the Applicant ha d not been taking his Zoloft , is rigid in behavior and had a hard time adhering to any treatment plan. A 19 January 2007 evaluation by the same doctor document ed the Applicant refused to take his recommended medications to assist with his sleeping patterns and refused to keep a sleep log , as requested by his physician . Despite his mental health and physical problems, i n every Mental He alth Evaluation the Applicant wa s found psychologicall y fit for full duty and fully accountable for his actions. While his medical condition may have been beyond his control, his failure to take corrective action was not.
The Applicant is requesting an upgrade to an “ Honorable ” discharge. For the edification of the Applicant, w hen a Marine’s service has been honest and faithful, it is appropriate to characterize that service under “H onorable ” conditions. A “ Gener al (Under Honorable Conditions) ” is appropriate if the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance outweighs positive aspects of the member’s military record . The Board determined the awarded discharge characterization was appropriate and an upgrade was not warranted.

After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Record, Discharge Process, 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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