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USMC | DRB | 2011_Marine | MD1100416
Original file (MD1100416.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20101203
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)       20080131 - 20080310     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20080311     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20091218      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 9 D a y ( s )
Education Level:        AFQT: 28
MOS: 3531
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle

Periods of CONF :

NJP:

- 20090129 :      Article (UA , 3 specifications )
         Specification 1: On or about 20090117 without authority, go from his duty section with the intent to abandon the same.
         Specification 2: On or about 20090118 without authority, fail to go to his appointed place of duty, to wit: Battalion AOOD, located at building 1537, and did remain so absent until on or about 20090120
         Specification 3 : On or about 20090120 without authority, fail to g o to his appointed place of duty, to wit: Company’s accountability formation
         Awarded: Suspended:

- 20090428 :      Article (Desertion , 2009030 - 20090407 , 35 days)
         Awarded: Suspended :

- 20090709 :      Article ( Without authority, absent himself from his place of duty at which he was required to be, located at TAP/TAMP class )
         Article (False official statement)
         Awarded: Suspended :

- 20090812 :      Article ( On or 20090809 stole 3 packs of cigarettes from the 7 day store in the main exchange)
         Awarded: Suspended :

SCM:     SPCM:    CC:




Retention Warning Counseling :

- 20090129 :       For my recent company level NJP for violations of Article 86 (three counts) of the UCMJ held on 20090129

- 20090504 :       For my recent Battalion level NJP for violations of A rticle 85 of the UCMJ held on 20090504, A bsent without leave from CLB-7 during the dates of 20090302 - 20090407

- 20090709 :       For recent company level NJP for violations A rticles 86 and 107 of the UCMJ held on 20090709

Administrative Corrections to the Applicant’s DD 214

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

         “ 2008 03 11 ”

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 Post-Service Period:
         Employment:               Finances:                 Education/Training:     
         Health/Medical Records:           Rehabilitation/Treatment:                  Criminal Records:       
         Personal Documentation :           Community Service:                References:     
         Department of VA letter:                  Oth er Documentation:    
                  Additional Statements :
         From Applicant:            From /To Representation:            From /To Congress m ember :        

Pertinent Regulation/Law

 A . Paragraph 6210, MISCONDUCT , 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 .



DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

 1.        The Applicant contends he should never have been enlisted due to mental health issues. The Applicant contends the Marine Corps was made aware of his condition following enlistment and should have taken action to remove him from service.

Decision

Date : 2012 0214             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 discharg e if such change is warranted. In reviewing discharges, the Board presumes regularity in the conduct of g overnment al affairs 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 for o f the Uniform Code of Military Justice (UCMJ): Article 85 ( Desertion , ), Article ( , ), Article ( , ), and Article ( , ). Based on the , command administratively processed for separation. When notified of administrative separation processing, the Applicant rights to consult with a qualified counsel, submit a written statement, and request an administrative board.

: (Decisional) ( ) . The Applicant contends he should never have been enlisted due to mental health issues. The Applicant contends the Marine Corps was made aware of his condition following enlistment and should have taken action to remove him from service. The Applicant is legally represented by his parents who submitted substantial documentation in support of this issue. The Applicant was pending a Social Security Administration decision regarding disability due to a serious mental condition when he enlisted in the Marine Corps , which was subsequently decided in his favor while he was still in the Marine Corps . The Applicant’s parents attempted to prevent his enlistment due to his mental condition that was being treated at the time , but the Applicant managed to enlist without their knowledge. The Social Security Administration found the Applicant to be disabled due to several diagnoses including: Chronic Brain Syndrome, anxiety disorder, learning disability, Attention Deficit Disorder , possible Asperger’s Syndrome, Obsessive Compulsive Disorder, and personality disorder not otherwise specified. The Applicant was found to have little maturity or comprehension of responsibility and was found to have limited ability to understand, remember , and carry out detailed instructions, maintain attention, concentrate, complete activities within a schedule, and maintain regular attendance or complete a normal work day or work week. He was also diagnosed with a developmental disorder in which he is unable to recognize behavior impacts. It was concluded the Applicant would likely have to live a life of parental supervision due to his disabilities. After carefully considering the record and the documentation submitted on behalf of the Applicant, the NDRB found the Applicant would not have been accepted into the Marine Corps if all the facts had been known at the time of enlistment. Additionally, th e NDRB found the Applicant’s mental disability mitigates his misconduct while in the Marine Corps and determined the Marine Corps would have treated his misconduct in a different manner had they been aware of his significant, numerous disabilities at the time . Therefore, in the interest of equity, the characterization of service will change to Honorable, and the narrative reason for separation will change to Secretarial Authority.

Summary: After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice, r ecord e ntries, and d ischarge p rocess, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall .


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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