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USMC | DRB | 2009_Marine | MD0900435

Original file (MD0900435.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20081212

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)       20030825 - 20030908     Active:

Period of Service Under Review:
Date of Enlistment: 20030909     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20070502      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 24 D a y ( s )
Education Level:        AFQT: 32
MOS: 1341
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle

Periods of UA / CONF :

NJP:

- 20050218 :      Article 92 (Failure to follow order or regulation, sleeping while on duty)
         Awarded: Suspended:

- 20050922 :      Article 1 32 ( Fraud against the United States )
         Awarded: Suspended:

- 20070420 :      Article 92 (Failure to follow order or regulation), 2 specifications
         Article 108 (Damage to military property)
         Awarded : Susp ended: for 6 months

SCM:     SPCM:    CC:

Retention Warning Counseling :

- 20070410 :       For the following deficiencies: Personality Disorder as evidenced by diagnosis by medical on 20070324.
- 20051019:      For the following deficiency; Pattern of Misconduct. Specifically, three page 11 and two NJPs for violations of Articles 86, 117, 132, and 134 of the UCMJ.
- 20050922:      For viola tion of Article 132 of the UCMJ, f raud against the United States.
- 20050217:      For violation of Article 117 of the UCMJ: Provoking speeches or gestures, SNM was highly intoxicated and when told to go back to his room he responded by spitting on the Marine. Violation of Art 86, he failed to report to his post.
- 20041115:      For inappropriate relations with a fellow Marine’s wife while he was deployed to OIF II from Feb 2004 to Sept 2004.

Types of Documents Submitted/reviewed

Related to Military Service:
DD 214:      Service / 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 Congress member :

Other Documentation :

Pertinent Regulation/Law

A. Paragraph 6203.3 CONVENIENCE OF THE GOVERNMENT, 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 .

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

Applicant’s Issues

1. Wants to use the GI Bill .
2. Feels the discharge was given unfairly.

Decision

Date: 20 0 9 0716 Location: Washington D.C . R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall PERSONALITY DISORDER.

Discussion

The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and the reason for discharge if such change is warranted. In reviewing discharges, the Board presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Applicant’s record of service included five NAVPERS 1070/613 (Page 11) warnings and three nonjudicial punishments (NJPs) for violations of the Uniform Code of Military Justice (UCMJ): Article 92 (Failure to order or regulation, 3 specifications : sleeping while on duty , violating a Military Protective Order, and violating suspension of base driving privileges ), Article 108 (Damage to military property : ripped a metal plate off bulkhead in his cell and broke a handcuff key while being restrained by military police ), and Article 132 (Fraud against the United States : falsified leave dates ). These are considered serious offenses that could have resulted in a punitive discharge and confinement if adjudicated and awarded as part of a sentence by a special or general court-martial. The Applicant was diagnosed with a n antisocial personality disorder by a U.S. Navy psychiatrist from the Beaufort Naval Hospital Behavioral Health D epartment and subsequently processed for administrative separation. When notified for s eparation p rocessing, the Applicant waived rights to consult with qualified counsel, submit a written statement, and request an a dministrative b oard.

: ( Nondecisional ) The Applicant would like to use GI Bill benefits for his education. The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.

: (Decisional) ( ) . The Applicant contends that because he suffers from psychological issues, traumatic brain injury (TBI) , post traumatic stress disorder (PTSD), and l earning disabilities , his discharge was given unfair ly . The Applicant provided a copy of an in-service medical visit of 29 March 2007 and a copy of a post-service Denver Veterans Affairs Medical Center evaluation of 6 November 2008 , the latter noting that he was evaluated with “ mild ” TBI and PTSD with a prognosis for recovery – but neither document provided an in-service diagnosis of PTSD and TBI . The NDRB reviewed the Applicant’s medical record s , and found no documentation of the Applicant ever being diagnosed with TBI, PTSD, but there was documented diagnosis of a learning disabilities and personality disorder while in the service. The Board determined that t he Applicant’s documentary evidence was not sufficient to verify if his medical conditions were mitigating factors for his misconduct. Based on the Applicant’s five Page 11 warnings, three NJPs, and proficiency/conduct marks, the NDRB determined that the awarded General (Under Honorable Conditions) characterization of service was appropriate .

For the Applicant’s edification, p ursuant to Naval Military Personnel Manual (MILPERSMAN) 1910-122 or Marine Corps Separation and Retirement Manual (MARCORSEPMAN) 6203.3, members may be processed for separation based on a mental health professional's clinical diagnosis of a personality disorder when the disorder is so severe that one's ability to function effectively and perform their duties is significantly impaired, and the individual poses a threat to safety or well being of themselves or others. Separation for personality disorder is not appropriate when separation is warranted for any other reason (e. g., member meets minimum criteria for misconduct processing). The record of evidence reflects the Applicant met the requirements for processing by reason of Convenience of the Government (Personality Disorder) and Misconduct (Pattern of Misconduct/Commission of a Serious Offense). Since the Applicant was only notified of administrative separation due to p ersonality d isorder, the Board determined there was an impropriety because the command failed to process the member for m iscond uct as required by regulation . However, since the impropriety resulted in a more favorable disposition for the Applicant, the Board determined that the narrative reason for discharge should remain unchanged .

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, medical and service record entries, and discharge process, the Board found the discharge was improper but equitable. Therefore, the awarded characterization of service shall GENERAL (UNDER HONORABLE CONDITIONS and the narrative reason for separation shall remain .

The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of discharge. The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews, Automatic Upgrades, and Post-Service Conduct .

ADDENDUM: Information for the Applicant

Complaint Procedures : If you believe 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 : After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s 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. There are veterans organizations such as the American Legion and the Association of Service Disable Veterans that are willing to provide guidance to former service members in their efforts to obtain a discharge upgrade. 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 U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB. 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 NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the NDRB’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 BCNR can make changes to reenlistment codes. Additionally, the NDRB 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 is processed subsequently for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended 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 BCNR can grant this type of narrative reason change.

Automatic Upgrades - There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct subsequent to leaving naval service.

Post-Service Conduct : The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. Outstanding post-service conduct, 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, is considered during Board reviews. Documentation to support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificates (if applicable); character witness statements; documentation of community or church service; certification of non-involvement with civil authorities; evidence of financial stability or letters of good standing from banks, credit card companies, or other financial institutions; attendance at or completion of higher education (official transcripts); and documentation of a drug-free lifestyle. The Applicant is advised that completion of these items alone does not guarantee the upgrade of an unfavorable discharge, as each discharge is reviewed by the Board on a case-by-case basis to determine if post-service accomplishments help demonstrate in-service misconduct was an aberration and not indicative of the member’s overall character.

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 NDRB 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 | 2009_Marine | MD0900435

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