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USMC | DRB | 2012_Marine | MD1201272

Original file (MD1201272.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20120516

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)       20030709 - 20040627     Active:

Period of Service Under Review:
Date of Current Enlistment: 20040628     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20070706      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 09 D a y ( s )
Education Level:        AFQT: 54
MOS: 0151
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness Reports:

Awards and Decorations ( per DD 214):      Rifle LoA

Periods of UA / CONF :

NJP:

- 20051130 :      Article (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer)
         Awarded: Suspended:

SCM:

- 20060829 :      Article (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer , 2 specifications )
         Specification 1: Disobey a lawful order
         Specification 2: Disrespectful language
         Article 134 (General A rticle, communicating a threat )
         Sentence:
         CA: Sentence approved and executed

SPCM:    CC:

Retention Warning Counseling:

- 20050921:      For violation of Article 86 of the UCMJ in that I have been UA from PT on several occasions to include the morning of 20050921.

- 20051202:      For violation of Article 91 of the UCMJ in that I did on or about 20051102 treat with contempt toward a known NCO when being questioned about my appointed place of duty.

- 20070319 :      For your summary court - martial on 20060830. You were found guilty of 2 specifications of violations of Article 91 and 1 s pecification of Article 134.

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:                  Other Documentation:
                  Additional Statements:
         From Applicant:          From/To Representation:          From/To Congress member:

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 his discharge was improper and inequitable since he was being treated for the health condition for which he was eventually discharged.

Decision

Date: 20 1 3 0403 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. T he Board did complete 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 6105 counseling warnings, for o f the Uniform Code of Military Justice (UCMJ): Article 91 ( Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer, 1 specification) , and for of the UCMJ: Article 91 ( Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer, 2 specifications) and Article 134 (General A rticle, communicating a threat, 1 specification ). Based on the diagnos is of a Personality Disorder and the recommendation of competent medical authorities, his command administratively processed him for separation . When notified of a dministrative separation processing using the procedure, the Applicant exercised right to consult with a qualified counsel but waived his right to submit a written statement.

: (Decisional) ( ) . The Applicant contends his discharge was improper and inequitable since he was being treated for the health condition for which he was eventually discharged. The Applicant was diagnosed with a Personality Disorder while in service. Pursuant to Paragraph 6203.3 , CONVENIENCE OF THE GOVERNMENT, of the Marine Corps Separation and Retirement Manual (MCO P1900.16F), members may be processed for separation based on a mental health professional’s clinical diagnosis of 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. The Applicant’s record was unclear as to whether the medical recommendation was for expeditious separation or with the intent to retain the Applicant after command counseling. However, the Applicant’s record did reflect a reference to the medical examiner’s recommendation to the Applicant’s command as an enclosure to the separation proceedings. The Commanding Officer, 3d L ight Armored Reconnaissance (LAR) Battalion makes reference to this medical examiner’s recommendation as the basis for the Applicant’s separation. The Applicant’s record also reflects the following comments from the Applicant’s Commanding Officer, Headquarters and Service Battalion, 3d LAR, “I believe that it is in the best interests of the Marine Corps to administratively separate PFC M_. His personality is not compatible with military service. He cannot be trusted to complete the simplest of tasks without constant supervision. His subversive behavior encourages other malcontents to misbehave and discourages NCOs who are trying to do their duties. Furthermore, though he may say that he wants to change for the better, he has yet to demonstrate that he wants to change his actions. ” During the Applicant’s three years of service, he received three retention counseling warnings and was found guilty of violating several UCMJ articles at an NJP and a summary court-martial. Though he was diagnosed with a Personality Disorder, this disorder did not prevent him from, or exonerate him from, observing the rules and regulations required of all Marines. There is nothing in his service or medical records that show he was not responsible for his actions or should not be held accountable for his misconduct. The Applicant was fortunate to have received a General discharge for Personality Disorder as his level and frequency of misconduct would typically result in an Under Other Than Honorable Conditions discharge for Misconduct (Serious Offense) or Misconduct (Pattern of Misconduct). Relief denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and discharge 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), 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 | 2012_Marine | MD1201272

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