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USMC | DRB | 2011_Marine | MD1101041

Original file (MD1101041.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20110315

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: 20040927     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 2005052 7      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 01 D a y ( s )
Education Level:        AFQT: 50
MOS: 1800
Proficiency/Conduct M arks (# of occasions): /          Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle

Periods of UA / CONF :

NJP:     SCM:     SPCM:    CC:

Retention Warning Counseling :

- 20050318 :       For diagnosis of a P ersonality D isorder with B orderline T raits , based on my medial officer’s evaluation (MOE) dated 20050317.

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 narrative reason change to reenlist in the U.S. Armed Forces R eserve.
2.       Applicant contends his discharge was improper based on an improper diagnosis of personality disorder.
3.       Applicant contends his discharge was improper/inequitable and should have been an entry level separation.
4.       NDRB Issue: The discharge should have been Honorable as there was no misconduct or other significant negative aspects of his service.

Decision

Date: 20 1 2 0 4 26          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 identif ied two decisional issues for the Board ’s consideration . T he Board complete d a thorough review of the circumstances that led to discharge and the discharge process to ensure discharge met the pertinent standards of equity and propriety. The Applicant’s record of service included one 6105 counseling retention warning (for diagnosis of Personality Disorder N ot Otherwise Specified (NOS) , with Borderline Traits ) , but did not reflect any commanding officer nonjudicial punishment or trial by courts-martial. The record did reveal that the Applicant began exhibiting behavioral and performance problems while attending his military occupational (MOS) school in early 2005 .

On 17 Mar 2005, the Applicant was referred to the Naval Hospital Camp Pendleton for mental health evaluation as a result of suicidal and homicidal ideations. Competent medical authority subsequently diagnosed the Applicant with Depressive Disorder NOS and Personality Disorder NOS, with Borderline Traits. The Staff Psychologist further recommended an expeditious discharge but deemed him fit to return to duty for immediate processing for administrative separation . The Applicant’s command, after considering all the available information up to that point, decided to retain the Applicant and give him a chance to work through his problems. However, due to further continued substandard behavior and performance, and b ased on the medical officer’s findings and recommendations, his command decided to process him for administrative separation from the Marine Corps in accordance with the Marine Corps Separation and Retirement Manual (MARCORSEPMAN) . When notified of administrative separation processing using the procedure on 12 Apr 2005 , the Applicant waived rights to consult with a qualified counsel and submit a written statement . On 29 Apr 2005, the Applicant was again referred to the Mental Health Unit for suicidal ideation. Upon completion of psychiatric evaluation, the Staff Psychologist reported a Borderline Personality Disorder and c ontinue d to recommend expeditious administrative separation of the Applicant . On 3 May 2005, the Battalion Commanding Officer, Assault Amphibian School, endorsed the Applicant’s administrative separation package and recommended a General (Under Honorable Conditions) discharge. The Applicant was discharged as directed on 27 May 2005.

: (Nondecisional) The Applicant seeks a narrative reason change to reenlist in the U.S. Armed Forces R eserve. 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 B oard for Correction of Naval Records 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.

: (Decisional) ( ) . The Applicant contends his discharge was improper based on an unsupported diagnosis of personality disorder. The Applicant submitted documentation to the NDRB of post-service mental health evaluations that support his contention that he does not currently have a personality disorder and did not have a personality disorder while in service. After thorough review of all available medical evidence, the NDRB determined the in-service diagnosis was valid. The contention that the personality disorder no longer exists, or has been overcome, d id not provide a legitimate basis , in this case, to question the in-service diagnosis by qualified professionals. Pursuant to MARCORSEPMAN paragraph 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 the safety or well being of themselves or others. The Applicant’s post-service mental health evaluation s were conducted more than four years after being separated, which the NDRB determined was too long a period following discharge to have relevance on his in-service diagnosis. After careful review, the NDRB found there wa s no impropriety with the discharge. Relief denied.

: (Decisional) ( ) . The Applicant contends his discharge was improper/inequitable and should have been an entry level separation. The Applicant was initially diagnosed with AXIS I: Depressive Disorder NOS and AXIS II: Personality Disorder NOS, with Borderline Traits on 17 Mar 2005 , and t he Staff Psychologist recommended entry level administrative separation processing ( which is not directive in nature , but a recommended course of action for the Applicant’s command ), P axil medication ( which the psychologist could not prescribe, only a psychiatrist) , and status changed to nondeployable (mental health diagnoses and suicide ideations; however, the Applicant was not determined to be at risk for suicide or homicide) . As of 17 Mar 2005, the Applicant had completed 170 days of continuous active duty service and was within 10 days of reaching the 180 window for entry level administrative separation. However, instead of immediately processing the Applicant for administrative separation, the Applicant’s command decided to afford the Applicant additional time to receive counseling and overcome his personal issues to allow him the opportunity to resume his training and join the operating forces. Over the next several weeks, t he Applicant continued to exhibit signs/symptoms that his condition was not improving and his command proceeded to notify him of pending administrative separation processing on 12 Apr 2005 ( approximately two weeks past the 180 day entry level separation window, which then required a normal administrative separation along with the appropriate characterization of service). On 10 May 2005, after considering the Applicant’s service and medical records and endorsements from his chain of command, the Separation Authority directed that the Applicant be discharged from the Marine Corps with a General (Under Honorable Conditions) discharge due to Personality Disorder. After careful review and analysis, the NDRB determined that the Applicant’s discharge was proper and in accordance with the applicable orders and directives in effect at the time of his separation. However, the Board did find that the discharge was inequitable. Refer to Issue 4 (Board Issue) below. Relief denied.

Issue 4: (Decisional) (Board Issue) ( ) . The NDRB finds the Applicant ’s discharge was inequitable. Per the MARCORSEPMAN, w hen a service has been honest and faithful, it is appropriate to characterize that service under Honorable conditions. 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. The Applicant’s record, though devoid of any NJP or trial by courts-martial, did contain a 3 May 2005 Page 11 counseling for violation of UCMJ Article 92 , possession of alcohol in the barracks while undergoing MOS training. However, instead of adjudicating the Applicant’s offense via NJP or trial by court-martial, the Applicant’s command opted to administer a warning via Page 11 record book counseling entry. Therefore, a fter detailed analysis and thorough deliberation on the available evidence, the NDRB found, by a 3-2 split vote, that the Applicant ’s administrative separation fro m the Marine Corps was proper, but not equitable . The NDRB determined that the Applicant did warrant an Honorable characterization as there was no misconduct or other significant negative aspects to warrant a General (Under Honorable Conditions) characterization of service. However, per the discussion in Issue 3 , there will be no change to the Narrative Reason for Separation.

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 change to 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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