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USMC | DRB | 2011_Marine | MD1100563
Original file (MD1100563.rtf) Auto-classification: Denied

ex-, USMC
        
Current Discharge and Applicant’s Request
Application Received: 20101221
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)       20040126 - 20040321     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20040322     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20050104      H ighest Rank:
Length of Service : Y ea rs M on ths 13 D a ys
Education Level:        AFQT: 54
MOS: 0621
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle MM GWOTSM NDSM

Periods of UA / CONF :

NJP: NONE        SCM: NONE        SPCM: NONE       CC: NONE

Retention Warning Counseling : 1

- 20041105 :       For poor judgment, lack of initiative, and dereliction of duty .

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 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 .


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

Applicant’s Issues

 1.       Applicant seeks a discharge upgrade to obtain veteran educational benefits.
2.       Applicant contends his discharge was inequitable based on his record of service.

Decision

 Date: 20 1 2 03 01            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 for the Board’s consideration. The Applicant’s record of service included one 6105 counseling warning ( a two-page document citing poor judgment, lack of initiative , and dereliction of duty) but did not contain any commanding officer nonjudicial punishment (NJP) or trial by courts-martial. The Applicant was diagnosed by the Division Psych ologi st as having a personality disorder that w ould not allow him to effectively serve in the Marine Corps. Based on the diagnosis, the doctor’s recommendation for expeditious separation, and the Applicant’s potential for further service, his command administratively processed him for separation. When notified of a dministrative separation processing using the notification procedure on 18 Nov 2004 , the Applicant exercised his right to consult with a qualified counsel, but waived his right to submit a written statement ; t he Applicant was not entitled to an administrative separation board. On 13 Dec 2004 , the Commanding Officer of 10th Marine Regiment endorsed the Applicant’s administrative separation package stating , “I have thoroughly reviewed (the Applicant’s) service record, and it depicts a Marine who , although not mentally ill, manifests a long-standing disorder of character and behavior. On 29 Oct 2004, (the Applicant) was evaluated by ( the Division Psych ologist) and diagnosed with Adjustment Disorder U nspecified and a Personality Disorder with Borderline features. His chain of command states that (the Applicant) demonstrates no desire to remain in the Marine Corps and will continue his substandard performance until he is discharged. Although not imminently suicidal or homicidal, he is a potential danger to himself. Retaining this Marine would negatively impact unit effectiveness and would be disruptive to the good order of the unit.” On 17 Dec 2004, the Separation Authority (Commanding General, Second Marine Division) directed the Applicant be separated from the Marine Corps with a General (Under Honorable Conditions) discharge due to Personality Disorder. The Applicant was subsequently discharged as directed on 4 Jan 2005.

: (Nondecisional) The Applicant seeks a discharge upgrade to obtain veteran educational benefits. The U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities as r egulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.
: (Decisional) ( ) . The Applicant contends his discharge was inequitable based on his record of service. Pursuant to Marine Corps Separation and Retirement Manual (MARCORSEPMAN) section 6203.3, members may be processed for separation based on a mental health professional ’ s clinical diagnosis of a personality disorder when the disorder is so severe that one ’ s ability to function effectively and perform their duties is significantly impaired, and the individual poses a threat to safety or well being of themselves or others. Moreover, when determining the character of service for a discharge under this chapter, ( Table 6-1, Guide for Characterization of Service ) it further states that “ characterization of service for a Marine separated under the provisions of paragraph 6203, convenience of the government , is either H onorable or G eneral ( U nder H onorable C onditions) as determined by the Marine ’ s service record unless the Marine is in an entry level status. Service will be uncharacterized for a Marine in an entry level status . ” A review of the Applicant’s service record reveals no significant misconduct (i.e. , NJP, trial by courts-martial, or civil convictions). However, a lengthy two-page 6105 retention warning (dated 5 Nov 2004) provides details regarding the Applicant’s dereliction of duty, lack of initiative , and poor judgment (lies / misrepresentation to the chain of command regarding his family situation in Pennsylvania; refusal to work; and

an increasing intensity of complaints prior to deployment in support of O peration Iraqi Freedom ). Per the M ARCORSEPMAN , a Marine may be awarded a General (Under Honorable Conditions) discharge if a member’s service has been honest and faithful, but significant negative aspects of the member’s conduct or performance outweigh positive aspects of the member’s military record. Based on the Applicant’s record of service and the specific details provided therein regarding his lack of performance and substandard professional conduct , the Board determined that the Applicant’s discharge was proper and equitable, and in accordance with the applicable orders and directives in effect at the time of his separation . A ccordingly, the Board determined that the Applicant’s issue did not provide a basis for which relief could be granted. Relief denied .

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries and the administrative separation 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 for additional information.


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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