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USMC | DRB | 2011_Marine | MD1101616

Original file (MD1101616.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20110621

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)       20050824 - 20060108     Active:

Period of Service Under Review:
Date of Current Enlistment: 20060109     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20080912      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 04 D a y ( s )
Education Level:        AFQT: 71
MOS: 2111
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle CoC

Periods of UA / CONF :

NJP:

- 20080403 :       Article (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer)
         Article (Failure to obey order or regulation)
         Article 128 (Assault)
         Awarded: Suspended: (suspend 6 months)

SCM:     SPCM:    CC:

Retention Warning Counseling :

- 20080114 :       For driving under the influence on 20070914 in Oceanside, CA on Hwy 76 at approximately 1336. When officers pulled her from the vehicle, SNM was unable to stand due to intoxication. SNM also upon stopping for the officer she collided with the curb and damaged city property. SNM blew a BAC of .08 and up. Your severe lack of self-discipline and failure to adhere to orders and regulations are not in keeping with the high standards of the Marine Corps. Conduct such as this is contrary to good order and discipline of your unit, and therefore is unacceptable.

- 20080407 :       For insubordinate conduct toward a noncommissioned officer, failure to obey order or regulation , and assault. Specifically, on 20071209 you were highly intoxicated and were belligerent and assaulted a noncommissioned officer by punching him in the shoulder. This conduct is prejudicial to good order and discipline and will not be tolerated.

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. The Applicant contends her discharge was improper in that the Marine Corps failed to adequately show the Applicant had a P ersonality D isorder , and she was not afforded the opportunity to overcome her deficiencies.

Decision

Date: 20 1 2 10 09 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. Although the Applicant’s service records are incomplete (missing administrative separation documentation to include: notification of administrative separation and acknowledgment of rights forms, commanding officer comments and endorsement, and the Separation Authority decision letter), the Board completed a thorough review of the available documentation to determine whether her discharge met the pertinent standards of equity and propriety. The Applicant’s record of service included 6105 counseling warnings (for DUI on 14 September 2007 with civil autho rity involvement and insubordinate conduct , belligerence, and assault on a n oncommissioned o fficer while highly intoxicated on 9 December 2007 ) and nonjudicial punishment (NJP) for o f the Uniform Code of Military Justice (UCMJ): Article 91 ( Insubordinate conduct toward a warrant officer, noncommissioned officer, or petty officer, belligerent conduct toward a noncommissioned officer on 9 December 2007) , Article 92 ( Failure to obey an order or regulation, 9 December 2007 ), and Article 128 ( Assault, punched a noncommissioned officer in the shoulder on 9 December 2007 ) . There was no evidence of trial by courts-martial. Since the NDRB did not have the Applicant’s administrative separation package documentation available for review, it could not determine whether the Applicant exercised or waived her rights to consult with a qualified counsel, submit a written statement, and request a General Court-Martial Convening Authority review . The Applicant was separated on 12 September 2008 with a General (Under Honorable Conditions) discharge due to Personality Disorder.

: (Decisional) ( ) . The Applicant conte nds her discharge was improper in that the Marine Corps failed to adequately show the A pplicant had a P ersonality D isorder , and she was not afforded the opportunity to overcome her deficiencies. Although the Applicant’s service records are incomplete, the NDRB conducted a thorough review of the available documentation to determine whether her discharge met the pertinent standards for propriety and equity. While reviewing the Applicant’s records, the NDRB noted that the Applicant’s medical record contained a 22 August 2008 in-patient discharge report from the Mental Health Unit, Naval Medical Center San Diego, CA. In the report, the mental health physician refers to previous diagnoses of Bulimia Nervosa, Alcohol Dependence, Depression N ot Otherwise Specified, and Borderline Personality Disorder . H owever, the Board noted that there was no other documentation within the medical records reflecting an initial diagnosis of B orderline P ersonality Disorder . The discharge report contained the following physician comment s : “The patient is responsible for all actions and is currently deemed at low risk of harm to self or others … . The patient is not fit for full duty. However, command is already proceeding with an Administrative Separation, so a new recommendation is not warranted at this time. ” A detailed review of the Applicant’s service records resulted in no evidence of Page 11 counseling or 6105 retention warnings related to B orderline P ersonality D isorder diagnosis or deficiencies in her performance and/or conduct related to this diagnosis. Additionally, there was no evidence that the Applicant had been recommended for an expeditious administrative separation related to the diagnosis that would have precluded the counseling requirement per the Marine Corps Separation and Retirement Manual (MARCORSEPMAN) . A f ter careful consideration of all the available documenta ry evidence in this case , the NDRB determined the Applicant’s discharge on the basis of P ersonality D isorder was improper. Moreover, since the separation notification documentation was not available for review, the Board could not determine whether the Applicant was notified of any other applicable basis for separation , even though she met the requirements for separation due to Misconduct (Commission of a Serious Offense) with her NJP for violation of UCMJ Articles 91, 92, and 128 and civil DUI . Accordingly, the NDRB found that the narrative reason shall change to Secretarial Authority. Relief warranted for the narrative reason for separation.

Per the MARCORSEPMAN , when a service has been honest and faithful, it is appropriate to characterize that service under Honorable conditions. A General (Under Honorable Conditions) discharge is warranted when the quality of the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance of duty outweigh the positive aspects of the member’s service record. The evidence of record does not demonstrate the Applicant was not responsible for h er conduct or s he should not be held accountable for h er actions. The Applicant’s conduct , including a civil DUI, NJP for assault and insubordinate conduct , and an enlistment P roficiency and C onduct marking average of 3.9/3.6, which forms the primary basis for determining the character of service, reflects the Applicant’s willful failure to m aintain the requirements of conduct expected of all Marines, regardless of her grade or length of service, and falls short of w hat is required for an upgrade in the characterization of service to Honorable . Accordingly, the Applicant’s characterization of service shall remain General (Under Honorable Conditions). Relief not warranted for the character of service.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, and medical and record entries, the Board found the discharge was improper. Therefore, the awarded characterization of service shall but the narrative reason for separation shall change to . 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), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 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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USMC | DRB | 2011_Marine | MD1101616

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