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USMC | DRB | 2009_Marine | MD0901135
Original file (MD0901135.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20090326
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)       20000714 - 20010624     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20010625     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20060124      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 00 D a y ( s )
Education Level:        AFQT: 59
MOS: 0621
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle

Periods of UA / CONF :

NJP:
- 20050917 :       Article 117 ( Provoking speech)
         Awarded : Susp ended:

- 20050814 :       Article 92 (Disobey lawful order), 2 specifications
         Awarded : Susp ended:

- 20050730 :       Not found in service record
         Awarded : Susp ended:

SCM: SPCM: CC:

Retention Warning Counseling : NFIR

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.       Decisional issue. Would like his discharged upgraded because misconduct was due the fact he is bipolar and suffers from manic depression , and was denied assistance for this problem while on active duty.

Decision

 Date: 20 10 0304            Location: Washington D.C .         R epresentation :

By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall COMPLETION OF REQUIRED ACTIVE SERVICE.

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 g overnment al a ffairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Applicant’s record of service included nonjudicial punishments (NJPs) for o f the Uniform Code of Mil itary Justice (UCMJ): Article 117 ( Provoking speech) and Article 92 ( Disobeying a lawful order) . There was a third NJP dated 20050730 , but the charges are not in the record. The Applicant was discharged upon completion o f active duty and he received a General ( Under Honorable Conditions ) characterization of service based on his service enlistment proficiency/conduct (PRO/CON) marks of 4.0 and 3.8 , respectively.

: (Decisional) ( ) . The Applicant claims his misconduct was a direct r esult of his undiagnosed medical condition, bipolar/manic depression disorder. He claims this conditi on was a result of his service in Iraq and that he did not receive medical or mental health assistance while on active duty. Careful review of his medical records show ed the Applicant first reported to sick bay on July 25, 2005 , after he was charged with misconduct and pending disciplinary action. At this time , he stated his issues (conduct and mental health status) are related to service in Iraq during the sprin g of 2003. The Applicant stated he witnessed and participated in violent acts whi le deployed. However, his Post Deployment Health Assessment forms , which he completed at the completion of his deployment, indica ted he did not suffer any trauma while deployed. The Applicant claimed these acts did not disturb him until he saw his father in the intensive care unit ( ICU ) as a result of a motorcycle accident , which occurred in October 2004. Review of his military service records show ed there was no dec rease in his performance between Oct ober 2004 and early July 2005. He stated during his July 25, 2005 , medical assess ment that he felt anxious and thought he deserved a mental disability discharge. For the next several weeks, t he Applicant was seen repeatedly by a military medical professional assigned to the USS A SHLAND (LSD 48) . Although he accepted some r esponsibility for his behavior, the Applicant continued to blame other s for his situation. On two subsequent occasions, a dditional disciplinary action was taken against him for misconduct . While serving time in the brig, t he Applicant suffered an acute presentation and was hospitalized, where he was diagnosed with bipolar disorder. On Sept 30, 2005 , the 2 nd Marine Division psychologist, after extensive observation of the Applicant while he was hospitalized, judged him not to have a thought, mood or anxiety disorder, but that his behavior was character driven and returned the Applicant to full duty. Aside from the Applicant’s personal statement , he provided no documentary evidence that he attempted to seek, but was refused assistance for his mental health problems . His medical records show he was seen by mental health professionals from the time he first dis closed a problem in July 2005 unti l his discharge in January 2006 . The NDRB determined the Applicant ’s misconduct was not due to his bi-polar disorder.

 The Applicant claim ed his performance dropped sharply when he returned from Iraq in June 2003. Review of his service record s showed his post-Iraq service semi-annual PRO/CON marks rang e d from a low of 4.4/4.3 to a high of 4.6/4.6. These are solid average ratings and do not reflect the alleged degradation in the Applicant’s performance. The Applicant’s PRO/CON marks were not reduced until his first NJP in July 2005. He had no misconduct prior to that date. Per MCOP1900.16F, the Marine Corps Separations and Retirement Manual, a Marine ’s characterization of service should be General (Under Honorable Conditions) with avera ge proficiency marks below 3 .0 and average conduct marks below 4.0. A fully honorable characterization of service is warranted only if the Marine’s service is so meritorious that any other characterization would be clearly inappropriate. The Applicant’s 4- year enlistment PRO/CON marks averages were 4.0 and 3.8 , respectively. With three NJPs and no awards indicating meritorious conduct or achievement, the NDRB determined the Applicant’s awarded characterization of service was appropriate.

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 .
The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of discharge , 24 January 2006 The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews, Automatic Upgrades, and Post-Service Conduct .

Pertinent Regulation/Law

 A. Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 1 September 2001 until Present,
Paragraph 1005, DISCHARGE FOR EXPIRATION OF ENLISTMENT OR FULFILLMENT OF SERVICE OBLIGATION .

 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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