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USMC | DRB | 2009_Marine | MD0901738
Original file (MD0901738.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20090602
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MARCORSEPMAN

Applicant’s Request:      Characterization change to:
         Narrative Reason change to: Entry Level Separation

Summary of Service

Prior Service:
Inactive:         USMCR (DEP)       20040623 - 20050612     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20050613     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20051130      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 18 D a y ( s )
Education Level:        AFQT: UNREADABLE
MOS: 9971
Proficiency/Conduct M arks (# of occasions): N/A / N/A

Awards and Decorations ( per DD 214):      Rifle

Periods of UA / CONF :

NJP:    SCM:   SPCM:          CC:

Retention Warning Counseling :

- 20050922 :       For your diagnosed borderline personality disorder, as evidenced by the Medial Health Department evaluation letter of 20050922.

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.       Enlist into the National Guard .
2.       Any documentation sign ed was under duress .
3 . Post-service warrants consideration.

Decision

 Date: 20 10 0331            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 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 warning and no misconduct that resulted in nonjudicial punishment (NJP) or court-martial. The Applicant was diagnosed on 22 September 2005 by the Mental Heath Clinic , Camp Pendleton , with adjustment disorder with anxiety and depressed mood , malingering, and borderline personality disorder. Based on the Applicant’s failure to disclose his history of psychiatric treatment , pre-service depression and suicidal ideation prior to entry into the Marine Corps and his personality disorder , command administratively processed for separation. When notified of a dministrative separation processing , the Applicant waived rights to consult with a qualified counsel, submit a written statement, and request a General Court-Martial Convening Authority (GCMA) review.

: (Nondecisional) The Applicant is trying to enlist in the National Guard. 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 reentry (RE) code. Only the Board for Correction of Naval Records (BCNR) can make changes to RE 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.
: (Decisional) ( ) . The Applicant alleged that he signed his separation documentation under duress, his superiors made false suicide and drug accusations against him, did not support him and he was cho ked by a drill instructor until he blacked out , and because he was treated unfairly he could not adapt to the Marine Corps any longer. The Applicant provided no documentation such as medical reports, notes from a Chaplain or statements from witnesses to support his allegations. In the absence of evidence to the contrary, presumption exists that the government executed the proper course of action. Per the Marine Corps Separation and Retirement Manual, separation for personality disorder is authorized only if the Marine’s ability to function effectively in the military environment is significantly impaired and if no other basis for separation applies. Since the Applicant failed to disclose his history of psychiatric treatment, pre-service depression and suicidal ideation prior to entry into the Marine Corps and there was no waiver or evidence the fraud no longer existed, he met the requirement s for separation by reason of fraudulent entry into the Marine Corps. Since, the Applicant served less than 180 days of continuous active duty, the awarded characterization of service was appropriate. After a careful review of the Applicant’s service and medical records, the NDRB determined the narrative reason for separation was appropriate. Relief denied.

: (Decisional) ( ) . The Applicant contends he has been working since his discharge and his post-service conduct warrants consideration. An Uncharacterized discharge does not imply any misconduct, nor does it have negative implications. The Applicant should be aware that, with respect to non-service related administrative matters, i.e., the Department of Veterans Affairs ( VA ) benefits, educational pursuits, and espe cially civilian employment, an U ncharacterized separation is c onsidered the equivalent of an H onorable or General (U nder Honorable C onditions) discharge. While the NDRB applauds the Applicant’s post-service conduct, such conduct has no relevancy in this case. No change is warranted.

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 FRAUDULENT ENTRY INTO MILITARY SERVICE.

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. The Marine Corps Separation and Retirement Manual, MCO P1900.16F), effective 1 September 2001 until Present, 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 .


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 Disable d American 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 their 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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