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USMC | DRB | 2009_Marine | MD0900801
Original file (MD0900801.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20090224
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MARCORSEPMAN

Applicant’s Request: Characterization change to:
                  Narrative Reason change to: “other” or “early release-other ”

Summary of Service

Prior Service:
Inactive:         NONE              Active:  

Period of Service Under Review:
Date of Enlistment: 20040611     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20080517      H ighest Rank:
Length of Service :
         Active: Y ea r ( s ) M on th ( s ) 24 D a y ( s )
          Inactive: Y ea r ( s ) M on th ( s ) 16 D a y ( s )
Education Level:        AFQT: 62
MOS: 0614
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      ARFM(M device) CoA MM

Periods of UA / CONF :

NJP:
- 20070730 :       Article 86 (UA from his appointed place of duty – left his post without authorization )
         Awarded : Susp ended:

SCM:

SPCM:

CC:

Retention Warning Counseling :

- 20061008 :       For unsatisfactory participation in required drill period , 7-8 October 2006 .
- 20061104 :       For unsatisfactory participation in required drill period, 3-4 November 2006 .
- 20061008 :       For unsatisfactory participation in required drill period, 7-8 October 2006 .
- 20070629:      For violation of Article 86 (UA). I was assigned to the Quick Reaction Force and required to be in the QRF lot at all times unless authorized to leave by someone in my chain of command. I without authorization or direction left the QRF lot.
- 20070910:      For the following deficiencies: disobeying a lawful order on 23 July 2007 given from a SNCO in that SNM did not come to work with a shave after being told it was mandatory.
 - 20071216 :       For unsatisfactory participation in required drill period, 15-16 Dec 2007.
- 20080106 :       For unsatisfactory participation in required drill period, 5 Jan 2008.
- 200803 :         For unsatisfactory participation in required drill period, March 2008.
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 :





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

Applicant’s Issues

 1. Separation code was i nequitable because it was b ase d on an i solated incident.

Decision

 Date : 20 0 9 521             Location: Washington D.C .         R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall .
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 eight retention warnings for unsatisfactory participation in a required drill period, disobeying a lawful order, and unauthorized absence (UA); and one nonjudicial punishment (NJP) for violation of the Uniform Code of Military Justice (UCMJ): Article 86 ( UA f rom appointed place of duty, his post in Djibouti, Africa). In addition, the Applicant failed to attend over six drill weekends. The Applicant was diagnosed with a personality disorder and was a dministratively processed for separation. When notified for Administrative Separation Processing, the Applicant waived his rights to consult with qualified counsel and submit a written statement. Per the Commanding General, Headquarters, Fourth Marine Aircraft Wing letter 1900 of 17 May 2008, the Applicant was approved for separation with a General (Under Honorable Conditions) characterization of service, a JFX1 (Personality Disorder) separation code, and an RE-3P reenlistment code.

Issue 1 : (Decisional) ( ) . The Applicant contends his separation code was inequitable because it was based on an isolated incident in four years of service with no adverse action and would like his separation code and narrative reason changed to “other” or “early release-other.” The Applicant was diagnosed with a personality disorder per a psychia tric consult dated 31 July 2007. In the Marine Control Squadron 24 letter 1900 S-1 of 2 March 2008, the Commanding Officer recommended “ administrative separation on the basis of a demonstrated sustained pattern of misconduct and diagnosis, by competent medical authority, of a personality disorder. ” This letter cites seven specific incidents as evidence of the Applicant’s pattern of misconduct, not the one isolated incident as the Applicant contends.

Pursuant to the Marine Corps Separation or Retirement Man ual (MARCORSEPMAN) , 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 Personality Disorder, the Board determined there was an impropriety because the command failed to separate the memb er for Misconduct as required. However, the Board does not have the authority to impose a more severe narrative reason for separation .

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and discharge process, the Board found the discharge was equitable but improper. However, as noted above, the Board does not have the authority t o impose a more severe narrative reason than received by the member . Therefore, the awarded characterization of service shall 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 .

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 .


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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