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USMC | DRB | 2009_Marine | MD0900755

Original file (MD0900755.rtf) Auto-classification: Denied

, ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20090213

Characterization of Service Received:

Narrative Reason for Discharge:
Authority for Discharge: MARCORSEPMAN

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

Summary of Service

Prior Service:
Inactive:         USMCR (DEP)       20060608 - 20070604      Active:

Period of Service Under Review:
Date of Enlistment: 20070605     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20081202      H ighest Rank:
Length of Service : Y ea r M on th ( s ) 28 D a y ( s )
Education Level:        AFQT: 88
MOS: 0651
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle Pistol

Periods of UA / CONF :

NJP:
- 20080515 :       Artic le 91 (Insubordinate conduct towards an SNCO)
         Article 92 ( F ailure to obey an order or regulation – 2 specifications)
         Article 107 (False official statement)
                  Awarded: Suspended: (Vacated 0n 20080520)

- 20080522 :      Article 86 ( U A), 2 specifications of late for restricted muster
                  Awarded: Suspended:

- 20080806 :      Artic le 86 (U A), late for restricted muster
                  Awarded: Suspended:

- 20080909 :      Artic le 86 (U A), late for restricted muster
                  Awarded: Suspended :

SCM: SPCM: CC:

Retention Warning Counseling :

- 20080515 : For NJP for violations of UCMJ, Articles 91, 92 and 107.
- 20080522 : For NJP for violations of UCMJ, Ar ticle 86 - Unauthorized absence (late for restricted muster).
- 20080909 : For NJP for violations of UCMJ, Ar ticle 86 - Unauthorized absence (late for restricted muster).

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 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 s of the UCMJ : A rtic le 86 (U A); Article 91 (Insubordinate conduct towards an SNCO) ; Article 92 (F ailure to obey an order or regulation ) ; and Article 107 (False official statement) .

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

Applicant’s Issues

1. Service benefits .
2. Mitigating circumstances ( m edical issues) .

Decision

Date: 20 0 9 0507 Location: Washington D.C . R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall 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 contends his discharge was inequitable due to mitigating circumstances (sleep disorder and ADHD) that were not treated until after the decision to separate him from the Marine Corps.
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 eviden ce submitted by the Applicant. The Applicant’s record of service was marred by three retention warnings and four NJP’s for violations of the Uniform C ode of Military Justice (UCMJ): Artic le 86 (U A); Article 91 (Insubordinate conduct towards an SNCO) ; Article 92 ( F ailure to obey an order or regulation ) ; and Article 107 (False official statement) . These are considered serious offenses which 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 command did not refer the Applicant for a court martial but opted instead for an administrative discharge based on an established pattern of misconduct . In addition, the Applicant was afforded the opportunity to appear before a n Administrative Separation Board (ASB). The ASB determined by a unanimous vote the preponderance of the evidence proved all acts or omissions alleged in the notification , and that the Applicant should be separated from the Marine Corps. The ASB recommended , by a vote of 2-1 , the Applicant should receive an “Under Other Than Honorable” conditions discharge.

After a thorough review, t he NDRB determined the Applicant ’ s medical condition was an underlying cause that contributed to his misconduct . Although it is stated the Applican t’s mother, a nurse practitioner, talked to the recruiter about his undiagnosed sleeping problem prior to enlistment, there are no documents to verify this claim . I t is ultimately the Applicants responsibility to reveal any and all conditions on his medical forms, which he failed to disclose. Once out of boot camp, t he Applicants command was aware he was having problems with sleeping since his arrival to Okinawa, wh ere they seemed to tolerate his lateness until his first NJP. The NDRB determined it was inevitable the Applicant would continue to have problems until his condition was properly diagnosed by Medical Officers. Unfortunately, the Applicant was subject to 3 additional NJP’s for UA (missing restricted muster) a total of four times out of approximately 930 assigned times. The Applicant was eventually seen by medical personnel and was diagnosed with Circadian Rhythm Sleep Disorder - delayed sleep phase and Attention- D eficit/ H yperactivity D isorder ( ADHD) , which he was given the medication ( Concerta and Seroquel ) to treat his condition prior to his discharge from the Marine Corps. Based on the circumstances surrounding the NJP’s , the NDRB agreed with the dissenting vote on the ASB and the recommendations from the Applicants Company Commander and NCOIC’ s, who kne w him best, that an upgrade to “General (Under Honorable Conditions)” would be appropriate.

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 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 Board for Correction of Naval Records (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 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 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 | MD0900755

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