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USMC | DRB | 2009_Marine | MD0901497
Original file (MD0901497.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20090504
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MARCORSEPMAN

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

Summary of Service

Prior Service:
Inactive:         USMCR (DEP)       20040924 - 20050807     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20050808     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20060421      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 14 D a y ( s )
Education Level:        AFQT: 64
MOS: 9900
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:
Awards and Decorations ( per DD 214):     
Periods of CONF : NONE

NJP:
- 20060210 :      Article 86 (UA – 4 days, 20060203 - 20060207)
         Awarded: Suspended:

SCM: SPCM: CC:

Retention Warning Counseling :
- 20060210 :       For unauthorized absence.

- 20060213 :       For personality and adjustment disorder. Specifically, adjustment disorder with depressed mood and dependent personality disorder as diagnosed on 20060209 by NMCSD Mental Health Unit.

- 20060224 :       For dependent personality disorder.

- 20060417 :       For administrative separation for 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

 Issue 1. Nondecisional issue . The Applicant would like his reentry ( RE ) code changed.
Issue 2. Decisional issue . The Applicant states his discha rge was inequitable because it was based on an isolated incident due to a medical injury.

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 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 6105 counseling warnings, and one nonjudicial punishment ( ) for o f the Uniform Code of Mil itary Justice (UCMJ): Article 86 ( Unauthorized absence (UA), 1 specification : 4 days ). In February 2006, the Applicant was diagnosed with adjustment disorder with depressed mood and dependent personality disorder. Based on the recommendations from mental health professionals, command administratively processed for separation. When process ed for a dministrative s eparation, the Applicant waived rights to consult with qualified counsel and submit a written statement . He did not have the right to request an a dministrative discharge b oa rd.

: (Nondecisional) The Applicant would like his RE code upgraded. 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.

In May 2008, the Applicant petitioned the BCNR for relief. In August 2008, the BCNR recommended to the Secretary of the Navy that his RE code be corrected to RE-3C vice RE-4. However, on 25 August 2008, the Assistant Secretary of the Navy for Manpower and Reserve Affairs [ASN (M&RA)] issued a memorandum that disapproved BCNR’s recommendation. In a BCNR letter to the Applicant dated 28 August 2008, he was “advised that reconsideration of your case will be granted only upon the presentation of new and material evidence not previously considered by the Board [BCNR] and approval by the Assistant Secretary.”

: (Decisional) ( ) . The Applicant contends his discharge was inequitable because it was based on one isolated incident caused by a military-related medical injury with no other adverse action. He feels he does not have a personality disorder and is fit for military service. The Applicant argues the Navy mental health professionals made their diagnosis within a 72-hour period, which he feels was not enough time for a thorough assessment. The Applicant had suffered a broken jaw near the end of boot camp, but graduated from recruit training . On 4 November 2005, the Applicant was transferred to the Basic Marine Platoon, Headquarters Company, Support Battalion , due to his injury. From 3 -7 F ebruary 2006, the Applicant was UA . Per the Applicant’s Naval Medical Center, San Diego, narrative summary for the period 7-9 February 2006, it stated he tried to commit suicide by taking 6-7 Vicodin tablets and had been having suicidal ideations for 2 months. During this period in the medical center, a clinical psychologist diagnosed the Applicant with adjustment disorder with depressed mood , and d ependent personality disorder , which was corroborated by a staff psychiatrist. In his letter of 24 February 2006, the clinical psychologist listed the dependent personality disorder as the only reason in his recommendation for separation, and stated the Applicant , “…is not considered to be mentally ill (no medically boardable condition), but does manifest a long-standing disorder of character and behavior, which is of such severity as to render this individual u nsuitable for continued military service. ” During his post-injury period, the Applicant attempted suicide, and continually complained of depression, lack of energy and an inability to sleep. Multiple statements in his medical record show he did not want to be a Marine and desired a discharge, as evidenced by his refusal to meet with an attorney or to make a statement while being processed for administrative separation. The NDRB knows m ilitary service is by its very nature a stressful environment. However, a Marine must be able to perform his duties at all times regardless of his personal feelings, injuries or work situation. Since the Applicant failed to meet USMC standards while in a controlled environment, it would have been negligent to have ignored these manifestations and allowed him to remain in the Marine Corps, where while in combat his inability to handle stress may have endangered the lives of fellow Marines.

The ASN (M&RA) had conducted an independent review, which resulted in his memorandum of 25 August 2008. He had determined there was no evidence that the Applicant was misdiagnosed wi th a personality disorder and the Applicant provided no medical eviden ce to support his assertion. T he Applicant has now submitted a letter from a civilian clinical psychologist dated 2 6 February 2009, which indicated she administered two tests to tests to the Applicant and both tests were considered invalid and could not provide a diagnostic conclusion; neither test could support or not support the Navy diagnosis. She recommended the Applicant seek a second opinion from a qualified clinician using the same tests, “because no clinician is immune to error.” However, due to financial reasons , the Applicant did not seek a second opinion. She further s tate d that in her “opinion based on correspondence and conversation could possibly support a diagnosis of AXIS I Adjustment Disorder, depressed, reactive to the medical incident.” The NDRB determined the post-service mental health tests, which occurred approximately 2 years after the tests he had taken while in the service, did not sufficiently demonstrate that he did not have a personality disorder at the time of discharge. After a careful review of the Applicant’s service and medical record s , and taking into consideration his statement, post-service evidence submitted by the Applicant, and the facts and circumstances unique to this case, the NDRB determined the Applicant met the requirements for separation due to personality disorder and , by majority vote, the awarded characterization of service shall remain as issued; by unanimous vote, the narrative reason for separation shall remain as issued.

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 proper and equitable at the time of discharge. 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 , 21 April 2006 . 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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