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USMC | DRB | 2009_Marine | MD0901420
Original file (MD0901420.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20090422
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)       20061002 - 20070122     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20070123     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20080514      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 18 D a y ( s )
Education Level:        AFQT: 78
MOS: 0311
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle

Period of UA : 20071030-20071202 (33 days)

NJP:

SCM:

- 20080401 :       Art icle 86 (UA)
         Article 115 (Malingering)
         Sentence :

SPCM: CC:

Retention Warning Counseling :

- 20080322 :       For pending administrative separation on the basis of personality disorder.

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. P ersonality disorder contributed to his behavior.
2. R ecord of service rates an Honorable characterization of service.
3. Post- service record deserves consideration.

Decision

 Date: 20 10 0204        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 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 one 6105 counseling warning, and one summary court-martial for violations of the Uniform Code of Military Justice (UCMJ) Art icle 86 (Absence without leave more than 30 days, 33 days - surrendered ) and Article 115 (Malingering). The NDRB could not find the specific chronological record of medical care (CRMC) report that initially diagnosed the Applicant with a personality disorder, but other CRMC reports and service record documentation refer to his having been diagnosed with a personality disorder. Therefore, the NDRB applied the presumption of regularity of government affairs in that the Applicant was properly diagnosed with a personality disorder by a mental health professional and recommended for administrative separation. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue. When notified of administrative separation processing, the Applicant consult ed with qualified counsel, but waived rights to submit a written statement and request an a dministrative b oard .

Issues 1 -2 : (Decisional) ( ) . The Applicant claims his personality disorder contributed to his misconduct, but his record of service warrants an upgrade to an Honorable characterization. The Applicant stated he was assigned leadership positions in the USMC, received above average physical fitness scores, completed several professional military education courses, and was in good standing with his peers and superiors. For the Applicant’s information, w hen a Marine is administratively separated there are several factors that are considered including, but not limited to, proficiency and conduct (Pro/Con) marks, reason for separation, type of behavior for the basis of separation, and the member’s age, length of service, grade, aptitude, and physical and mental condition.

A r eview of his pre-service medical records show ed the Appl icant was treated between the ages of 14 and 16 years old for a ttention deficit hyperactivity disorder (ADHD) , b ipolar manifestations, and anger management issues. While the Applicant noted in his enlistment documents he was under psychiatric care at the age of 5 years because his parents separated , he did not disclose his history of psychiatric treatment as a teenager. Although the Applicant successfully completed his recruit training and military occupational specialty ( MOS ) school , he refused to continue his train ing and went absen t without leave for 33 days . In his discharge separation package , all members of his immediate chain of command comment ed that the Applicant failed to perform any of his assigned duties in an acceptable manner, that he required constant supervision and his presence adversely impacted the effectiveness of his unit. H is supervisors acknowledge d the Applicant ha d anger issues, was belligerent and non-compliant, and his behavior wa s inherently unstable and erratic. The Applicant’s final pro/con marks were 3.6/2.6, respectively. (These pro/con marks are below the minimum standards for an Honorable characterization had he completed his required active service.) T he NDRB opined the Applicant’s commanding officer took into consideration the Applicant’s personality disorder, because he did not pursue a punitive discharge but opted instead for the more lenient administrative discharge and recommended a General (Under Honorable Conditions) discharge. After a careful review of the Applicant’s service and medical records, the NDRB determined the Applicant met the requirements for separation by reason of convenience of the government – personality disorder and the awarded characterization of service was warranted. Relief denied.

Issue 3: (Decisional) ( ) . The Applicant states he has hel d two jobs since his discharge one and a half years ago and has not gotten into any trouble with the law. The NDRB conside rs post-service conduct to determine if the misconduct committed during active duty was indicative of the Applicant's character or an aberration. Besides the Applicant's statement on the DD Form 293, he failed to provide any additional documentation and evidence on his behalf to support a post-service conduct review. On page 4, Item 8, in the instructions for completion of DD Form 293, the Applicant is notified to submit evidence "which substantiate or relate directly to your issues in Item 6" (Issues: Why an upgrade or change is requested and justification for the request). Additionally, upon receipt of the Applicant's DD Form 293, the NDRB mails an acceptance letter that includes Information Concerning Review Procedures , which discusses the submission of additional documents in paragraph 3, Submission of Evidence , and in the last section on page 4, Information Pertaining to a Review Based Upon Post-Service Conduct . However, even if the Applicant could have produced additional evidence to support a review based on his post-service conduct, the Applicant must have a full understanding that post-service conduct alone does not guarantee an upgrade.

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 , 14 May 2008 . 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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