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USMC | DRB | 2009_Marine | MD0901076
Original file (MD0901076.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20090313
Characterization of Service Received:
Narrative Reason for Discharge: ERRONEOUS ENLISTMENT
Authority for Discharge: MARCORSEPMAN

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

Summary of Service

Prior Service:
Inactive:         USMCR (DEP)       19970630 - 19971020     Active:  

Period of Service Under Review:
Date of Enlistment: 19971021     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 19971117      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 27 D a y ( s )
Education Level: GED     AFQT: 48
MOS: 9900
Proficiency/Conduct M arks (# of occasions): /          Fitness R eports:

Awards and Decorations ( per DD 214):      NONE

Periods of UA / CONF :

NJP: SCM: SPCM: CC: Retention Warning Counseling :


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. The Marine Corps Separation and Retirement Manual,(MCO P1900.16E, effective 18 Aug ust 19 95 until 31 Aug ust 2001),
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. Applicant states he had no fair representation or discharge hearing and no explanation of character of service.

Decision

 Date: 20 0 9 0917            Location: Washington D.C .         R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall ERRONEOUS ENLISTMENT (OTHER) .

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 his admittance to a medical clinic for suicide ideations on 4 November 1997 , with superficial wrist lacerations made by a shaving razor . The Applicant also consumed 1-3 tab lets of three different medications (Motrin, Sudafed, Clarithromycin). The Applicant made statements that he wanted to hurt himself to get out of training and go home. He also stated that he made a poor choice in joining the USMC. The Applicant was diagnosed with Major Depressive Disorder and Adjustment Disorder with Depressed Mood by p sychiatry personnel at the Naval Medical Center in San Diego. When processed for a dministrative s eparation on 12 November 1997 , the Applicant waived rights to consult with qualified counsel and submit a written statement for cons ideration by the separation aut hority . The Applicant was not entitled to a discharge board.

Issue 1 : (Decisional) ( ) . The Applicant contends he had “ no fair representation or discharge board and was not provided an explanation or advi ce as to character of service. ” By regulation, members discharge d within the first 180 days of enlistment are eligible for an uncharacterized or entry-level separation characterization of service , u nless unusual circumstances regarding their performance or conduct merit an honorable characterization. The Applicant's service record did not contain any unusual circumstances during his 27 days in the military to warrant a n H onorable characterization . The NDRB advises the Applicant that, w ith respect to non - service related administrative matters ( i.e., Department of Veteran Affairs (DVA) benef its, civilian employment, etc. ) an uncharacterized separation shall be considered as the equivalent of an Honorable or General (under Honorable conditions) characterization.

The Applicant also provided a post-service assessment by a clinical psychologist that took place on 4 April 2004, which found him to be in satisfactory health—both emotionally and psychologically. However, this psychological assessment, which was done 6.5 years after his discharge provides no evidence that such was the case in 1997. T he Board opined that the command’s pu r suit of a discharge for the Applicant based on the suicidal gestures he displayed when he cut himself, consum ed pills and threaten ed to hurt himself was reasonable, appropriate and supported by a medical diagnosis by a qualified provider.

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 Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain ERRONEOUS ENLISTMENT (OTHER).



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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