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USMC | DRB | 2009_Marine | MD0902487
Original file (MD0902487.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20090909
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:         NONE              Active:  

Period of Service Under Review:
Date of Current Enlistment: 19950929     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 19961010      H ighest Rank:
Length of Service:
         Inactive:        Y ea r ( s ) M on th ( s ) 22 D a y ( s )
         Active:  Y ea r ( s ) M on th ( s ) 20 D a y ( s )
 Education Level:        AFQT: 51
MOS: 3051
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle

Periods of CONF : 19960709-19961008 ( 92 D ay s : Pre-Trial Confinement )

NJP:

- 19960312 :      Article (Failure to go to appointed place of duty 1800, 19960310-0700, 19960311 )
         Awarded: Suspended:

SCM:

SPCM: Applicant elected separation in Lieu of Trial by Special Court Martial; specifications of the charges were not found in the record.

CC:

Retention Warning Counseling :

- 19960312 :       For violation of Article 86

- 19960422 :       For failure to go at the time prescribed for military instruction ( 0545 / 19960416 ) . In addition to not being on time for class , you did not return until 1300, 19960416. Your conduct in this manner is inexcusable and will not be tolerated.






Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

          “ UNDER OTHER THAN HONORABLE CONDITIONS ”

The NDRB will recommend to the Commandant of the Marine Corps that the DD 214 be corrected as appropriate.
Types of Documents Submitted/reviewed

 Related to Military Service:
                  DD 214:            Service / Medical Record:            Other Records:   

Related to Pre/ 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. Paragraph 6419, SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 18 August 1995 until 31 August 2001.

 B. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part IV, Para 403m(7)(b), Presumption Concerning Court-Martial Specifications .

C . 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.       Nondecisional issue: Requesting upgrade in discharge characterization to seek VA health care and other Veteran benefits.
2.       Decisional issue : (Propriety) Applicant contends that he should not have been enlisted into military service due to a pre-existing medical diagnosis of schizophrenia, which the Applicant contends his mother told the recruiter about.

Decision

Date: 20 10 0909            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 identified one decisional issue to the Board and provided documentation , which included a pre - and post - service medical diagnosis and treatment confirmation in support of his claim of pre-service schizophrenia and post - service bi-polar manic depression.

 T he Board complete d a thorough review of the circumstances that led to his d ischarge , and the discharge process , to ensure the discharge met the pertinent standards of equity and propriety. The Applicant’s record of service included two 6105 retention- counseling warnings and one for o f the Uniform Code of Military Justice (UCMJ): Article 86 ( Unauthorized a bsence: Failure to go to appointed place of duty 1800 19960310 to 0700 19960311). Additionally, the Applicant was enlisted after receiving two waivers for enlistment (pre-service drug use and criminal moral waiver) as well as a waiver to his enlistment while a t recruit training due to undisclosed disqualif ying factors that rendered hi m ineligible for his intended military occupational specialty (MOS) . The Applicant was reclassified and allowed to complete training in a new MOS that supported his intended reserve unit’s manpower requirement.

The NDRB reviews the propriety and equity of each Applicant’s discharge individually. Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline in the N aval service. In this specific case, the Applicant was in pre-trial confinement, pending trial by Special Court -M artial for violation(s) of the Uniform Code of Military Justice. The Applicant’s military record does not contain a copy of the separation proceedings; however, the Board presumes regularity in the conduct of governmental affairs. The Applicant requested discharge for the good of the service to escape trial by Special C ourt- M artial. A request for separation in lieu of trial by court-martial contains c ertain basic requirements that must be satisfied before receiving approval by the Separation Authority . In the request, the Applicant clearly confirms that his rights w ere explained to him thoroughly , to include his right to consult counsel. Furthermore, the Applicant declares his guilt to the charges preferred against him and further certifie s that he has a complete understanding of the negative consequences of his actions , the narrative reason for his separation, and that his characterization of service upon separation could be U nder O ther T han H onorable C onditions.

: (Nondecisional) – The Applicant requests an upgrade in his characterization of service from Under Other Than Honorable Conditions to General, Under Honorable Conditions , in order to receive U.S. Department of Veterans Affairs (VA) medical treatment and other benefits afforded a military veteran. The VA determines eligibility for post-service benefits, not the NDRB. There is no requirement , or law , that grants re - characterization solely on the issue of obtaining veterans benefits ; as such, this issue does not serve to provide a foundation upon which the Board can grant relief.

: (Decisional) ( ) . The Applicant contends that he should not have been enlisted due to pre-service mental health issues , specifically a diagnosis of schizophrenia , and that his mother indentified this condition to the Applicant’s recruiter. The NDRB 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 . In this case, the Applicant provided no documentation to rebut the government’s presumption of regularity. The Applicant documents a diagnosis of schizophrenia at age 15; he enlisted almost 9 years later at the age 24. Additionally, the Applicant’s pre-enlistment Report of Medical History and his Medical Screening Examination clearly document his denial of a ny history of treatment by a psychiatrist, psychologist, social worker, counselor, or other professional mental health care provider. Finally , the Applicant again failed to disclose any history of psychiatric or psychological treatment while at recruit training when he was afforded a final opportunity to amend his enlistment documentation. At any point in the enlistment process, the Applicant could have been administratively separated under erroneous enlistment or fraudulent enlistment had his mental health issues surfaced . The Applicant provided no documentation that his early youthful diagnosis of schizophrenia was present during his enlistment or contributed to his misconduct. The Applicant’s record reflects that he successfully completed both recruit training and Marine Combat Training with proficiency and conduct evaluations of 4.3 and 4.5, respectively . The Board determined that the awarded narrative reason for discharge was appropriate; a change would be inappropriate.

While in his formal MOS school training, the applicant violated the UCMJ for unknown charges and specifications . However, u pon consideration of the facts and circumstances surrounding the offense(s) , and upon further consideration of the need for military discipline in the command, the Commanding Officer determined that the charges were of such a serious nature that they warranted pre-trial confinement and a trial by Special Court Martial. In the Applicant’s request for review of discharge, he did not contest the severity of the charges or his guilt. Too avoid trial by c ourt -m artial , t he Applicant requested a discharge for the good of the service. The command accepted the Applicant ’ s acknowledgement of misconduct , his acceptance of responsibility for that misconduct, and granted his request . In doing this, t he command opted for the more lenient admini strative separation in lieu of the more punitive trial by c ourt -m artial.

When a service has been honest and faithful, it is appropriate to characterize that service under H onorable C onditions. A discharge Under Other Than Honorable Conditions is warranted when a member engages in conduct involving one or more acts or omissions that constitute a significant departure from the conduct expected of members of the naval service. Given the serious nature of the charges that warranted a trial by court - martial, t he Board determined the Applicant’s conduct, which forms the primary basis for determining the character of his service, reflected a significant departure from that conduct expected of a service member . T he Board determined that the awarded characterization of service was appropriate; an upgrade would be inappropriate.

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. The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews, Automatic Upgrades, and Post-Service Conduct .


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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