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USMC | DRB | 2011_Marine | MD1102067
Original file (MD1102067.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20110906
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)       20010612 - 20011204     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20011205     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20050512      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 8 D a y ( s )
Education Level:        AFQT: 84
MOS: 0351
Proficiency/Conduct M arks (# of occasions): /          Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle (2) , , , , ,

Periods of CONF :

NJP:

- 20030121 :      Article (Did on or about 2002080 6 , absent himself from his unit , and did remain so absent until he surrendered himself to military authority on 20021115 - 9 7 days )
         Awarded: Suspended:

SCM:     SPCM:    CC:      Retention Warning Counseling : None .     

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 P1900.16E), effective 1 September 2001 until Present.
B. Paragraph 6203.3 CONVENIENCE OF THE GOVERNMENT, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 1 September 2001 until Present.

C. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 86 (in excess of 30 days) .

D . 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

 Decisional issues : The Applicant contends that his characterization of service at disch arge was inequitable and unfair, contending that he was being processed for an involuntary separation for the convenience of the government due to a Personality Disorder, not misconduct, which is the narrative reason for discharge that he received. Additionally, the Applicant contends that he suffers from Post - Traum atic Stress Disorder (PTSD).

Decision

 Date: 20 1 1 1116           Location: Washington D.C .         R epresentation :

By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall .

Discussion

 The NDRB reviewed the Applicant’s personal statement . T he Applicant stated that he was suffering from PTSD. As such, in accordance with U.S. Code, Title 10, Section 1553 (d) (1), the board included a member who is a physician, clinical psychologist, or psychiatrist. In accordance with section 1553 (d) (2), the service secretary expedited a final decision and accorded the case sufficient priority to ac hieve an expedited resolution.

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 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. The NDRB reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis; if such a review reveals an impropriety or inequity, relief is in order. Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with the standards of discipline of the Naval Service. T he NDRB completed a thorough review of the circumstances that led to the Applicant’s discharge, and the discharge process, to ensure the discharge met the pertinent standards of both equity and propriety.

The Applicant entered military service at age 18 on a four year enlistment with a guaranteed contract of Infantry Option. The Applicant’s enlistment record reflects entry into military service without any waivers to enlistment and induction standards. The Applicant completed three years and five months of the f our-year enlistment obligation. The Applicant completed one deployment as an Infantry Anti-Tank Missileman in the Al-Anbar Province of Iraq while conducting combat operations in support of Operation IRAQI FREEDOM (OIF). The military service record further documents that he was awarded the Combat Action Ribbon for his actions while engaged in direct combat operations against enemy forces during the period of March to August 2003 .

The Applicant’s record of service documents the Applicant receiving no retention-counseling warnings during his service . Additionally, the service record document s a single non-judicial punishment (NJP) ( Jan 2003 ) for violation of the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave - absented himself from his unit without authority for 97 days , absence terminated by surrender to military authorities ) . During the Applicant’s unauthorized absence period , he was declared a deserter after 30 days of absence and subsequently dropped from his unit’s rol l s. The Applicant’s unauthorized absence was terminated when he surrendered himself to military authorities in November 2002. Having served his punishment as awarded from the NJP, the Applicant deployed with his Infantry Battalion to Kuwait in support of Operation ENDURING FREEDOM and then onward into Iraq for combat operations in support of Operation IRAQI FREEDOM from March to August 2003 . The Applicant’s Post - Deployment Health Assessment documents no direct combat engagements but contact with dead enemy and civilian bodies. The Applicant’s service record documents no further misconduct since the NJP for unautho rized absence in January 2003.





The Applicant’s medical records reflect treatment and counseling by appropriately credentialed mental health care providers beginning in the summer of 2004 and document a long-standing history of family social and psychological issues stemming from abuse and molestation with suicidal ideations and hospitalizations. In July 2004, the Applicant was treated in the emergency room of the local naval hospital for a suicide attempt. I n September and November 2004 , the treating psychiatrist recommended the command pursue administrative separation proceedings due to a diagnosed long - standing personality disorder , no t otherwise specified, with cluster “B” borderline and anti-social traits . Additionally, the Applicant was diagnosed with Dysthymia and Major Depressive Disorder, recurrent. The Command was advised , however, that the recommendation was not expeditious in nature and counseling and an opportunity to undertake corrective actions was required prior to processing for separation. The service record documents that the Applicant was counseled regarding his diagnosis and corrective actions on 09 September 2004. Showing no significant signs of improvement in his performance or conduct, the Applicant was subsequently processed for administrative separation in December 2004.

When notified of administrative separation processing using the notification procedure, the Applicant waived right to consult with a qualified legal defense counsel and to submit a written statement for consideration by the Separation Authority . Due to the proposed characterization of service, the Applicant did not warrant an administrative hearing board . The Applicant was notified - in writing - of the Command’s intent to process the Applicant for administrative separation in accordance with the M arine Corps Separation and Retirement Manual (M ARCORSEPMAN ) for Misconduct ( Commission of a Serious Offense - paragraph 6210. 3), Fraudulent Enlistment (paragraph 6204), and Convenience of the Government (Personality Disorder - paragraph 6203.3) . The Applicant was advised that the least favorable characterization of his service at discharge was General (U nder H onorable C onditions ) and that characterization was what the Command was recommending he be awarded. After review by the Staff Judge Advocate, the Separation Authority determined that the evidence of record was sufficient in law and fact to support the proposed discharge action for Misconduct and for Convenience of the Government (Personality Disorder) only . The Separation Authority reviewed the chain of command’s recommendations regarding characterization of service and, o n 14 March 2005 , he directed that the Applicant be discharged with a General ( Under Honorable Conditions ) characterization of service and that the primary basis for discharge be Misconduct ( Commission of a Serious Offense ) pursuant to paragraph 6210. 3 of the MARCORSEPMAN. He further directed that, upon his discharge, the Applicant receive an RE-4 re-entry code (not recommended for reenlistment ).

(Decisional Issues) ( ) PARTIAL . The Applicant contends that his characterization of service at discharge was inequitable and unfair, contending that he was being processed for an involuntary separation for the convenience of the government due to a Personality Disorder, not misconduct, which is the narrative reason for discharge that he received. Additionally, the Applicant contends that he suffers from PTSD.

Propriety - The Applicant was recommended for administrative separation in accordance with paragraph 6302 of the MARCORSEPMAN , which requires that Marines be processed for all reasons for separation in which the minimum criteria are met. However, separation authorities must choose the most appropriate reason when actually effecting the separation. The Applicant was notified of separation processing for three bas e s of separation: (1) Misconduct (Commission of a S erious Offense - violation of Article 86 in excess of 30 days) , (2) Convenience of the Government ( Personality Disorder - documented mental health care provider diagnosis) , and (3) Fraudulent Enlistment (pre-service suicidal ideations and hospitalization) . The Applicant was afforded the opportunity to consult with a qualified legal defense counsel and was notified properly of the proposed recommendation s for separation; he acknowledged the separation process and elected his rights - in writing. Based on the record, the NDRB determined that the separation was proper and was conducted in accordance with the requirements of the MARCORSEPMAN. A change to the discharge action based on matters of propriety is not warranted.

Equity - Despite a service member’s prior record of service, certain serious offenses warrant separation from the Naval Service in order to maintain good order and discipline. Violation of Article 86 (in excess of 30 days) is one such offense, warranting processing for administrative separation, regardless of grade, combat experience, or time in service. This action may result in an unfavorable characterization of discharge or, at a maximum, a punitive discharge with the possibility of confinement, if adjudicated and awar ded as part of a sentence by a S pecial or G eneral C ourt- M artial. However, the Applicant’s command opted for the more lenient n onjudicial punishment . T hey further determin ed that retention and rehabilitation was warranted. The Applicant completed his administrative punishments and then deployed with his Battalion to Kuwait and Iraq to conduct combat operations. The Applicant was awarded the Combat Action Ribbon for his individual actions against enemy forces under fire. Over a year later, t he Applicant was treated and diagnosed with a long-standing personality disorder, which was so severe that the Applicant’s ability to function effectively was significantly impaired ; this diagnosis resulted in the recommendation for administrative discharge . After a detailed review of the record, t he NDRB determined that the diagnosis of Personality Disorder , and not Misconduct, was the primary basis of separation and that this basis was the equitable narrative reason for separation. However, the Applicant did not request a change in Narrative Reason for Separation to Personality

Disorder. In cases where no other reason for separation set forth in the Marine Corps Separation and Retirement Manual is appropriate, but where separation of a member is considered to be in the best interest of the service, the Secretary of the Navy has the authority to direct the separation of any member prior to the expiration of their term of service. Since there is no other N arrative R eason for S eparation that accurately describes the reason the Applicant was separated, the NDRB determined the reason for the Applicant’s discharge shall change to Secretarial Authority. P artial relief warranted.

The Applicant’s request for a review of his discharge contends that he was diagnosed with PTSD . As such, the NDRB reviewed the Applicant’s record of service to determine if PTSD was service - connected or combat - related, and w hether it may have been a contributing factor for the Applicant’s misconduct of record. The NDRB requested the Applicant’s service medical records and all post-service VA medical records to validate the diagnosis of PTSD, the severity of the disorder, and whether it may have been a contributing or mitigating factor in relation to the equity of the discharge. The NDRB received the Applicant’s in-service and post - service medical record s from the VA . T he medical record s reflect that the Applicant was seen in-service and received a diagnostic impression of PTSD , Dysthymia, and Major Depressive Disorder (MDD), however, further evaluation and counseling resulted in a diagnosis of Dysthymia, MDD, and PTSD related to past trauma from his childhood. Since discharge, the Applicant has received multiple Compensation and Pension exams with the Department of Veterans Affairs to determine disability compensation . Based on their review of the Applicant’s service records , coupled with his current , post-service treatment records, the VA denied the Applicant ’s service connection for P TSD . Their findings were that the PTSD was not related to his military service. The VA has approved disability compensation for other service-connected issues (Anxiety Disorder with Dysthymia Disorder, 30% , and Lumbar strain, 10%). Given the facts of the record, the NDRB determined that the diagnosis of PTSD was not combat - related. Further, the NDRB determined that the PTSD was not a mitigating factor to the misconduct of record. Relief not warranted.

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 outweighed the positive aspects of the member’s service record. An Honorable characterization of service is warranted when the quality of a member’s service generally meets the standard of acceptable conduct and performance for Naval personnel, or is otherwise so meritorious that any other characterization of service would be clearly inappropriate. Given the facts of the record, the information provided by the Applicant, and the Applicant’s combat service, the NDRB determined that the Applicant’s conduct, which forms the primary basis for determining the character of his service, was honest and faithful, but that a significant negative aspect of the member’s conduct (97-day unauthorized absence) did outweigh the overall positive aspects of his record. As such, given the facts and circumstances unique to this case, the NDRB determined that the discharge action was proper, but inequitable and that partial relief was warranted based on equitab ility. The NDRB voted 5-0 that the characterization of service at discharge shall remain General (Under Honorable Conditions), but, by a vote of 5-0, the N arrative R eason for S eparation shall change to Secretarial Authority .

The Applicant contends he was awarded a Good Conduct Medal. This is incorrect. A Good Conduct Medal is awarded after three years of misconduct-free service. The Applicant was found guilty at NJP approximately 13 months into his enlistment. The confusion likely arose from Block 18 on the Applicant’s DD Form 214, which states, “Good Conduct Medal period commences: 20030121.” This notation refers to the resetting of the three-year counter for eligibility for a Good Conduct Medal and corresponds to the date of his NJP. After 21 January 2003, he did not serve three more years and so was not eligible for the Good Conduct Medal.

Summary: After a thorough review of the available evidence, to include the Applicant’s statements and supporting documentation, the summary of his service, service and medical record entries, and discharge process, the NDRB determined that Therefore, the awarded characterization of service shall , however, 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, specifically the paragraphs titled Additional Reviews 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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