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USMC | DRB | 2012_Marine | MD1201604

Original file (MD1201604.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20120718

Characterization of Service Received:

Narrative Reason for Discharge:

Authority for Discharge: MARCORSEPMAN

Applicant’s Request:      Characterization change to:
         Narrative Reason change to: MISCELLANEOUS

Summary of Service

Prior Service:
Inactive:         USMCR (DEP)       20050514 - 20050828     Active:

Period of Service Under Review:
Date of Current Enlistment: 20050829     Age at Enlistment:
Period of E nlistment : Years M onth
Date of Discharge: 20060403      H ighest Rank:
Length of Service : Y ea r M on ths 06 D a ys
Education Level:        AFQT: 49
MOS: 9900
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle

Periods of CONF :

NJP:

- 20060217 :       Article (Absence without leave, 20060127 - 20060207, 12 days )
         Awarded: Suspended:

SCM:    SPCM: CC:     Retention Warning Counseling :

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 wants his RE Code changed to RE-1.
2 .       The Applicant contends he was misdiagnosed with a Personality Disorder , the Marine Corps did not present no nmedical written evidence to show specific example s of how he was unable to function in a military setting , did not counsel him, and did not give him a reasonable opportunity to correct his deficiencies .
3.       NDRB Issue: The Applicant’s characterization of service was improperly assigned.

Decision

Date: 20 1 3 0426          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 Board did complete a thorough review of the circumstances that led to discharge and the discharge process to ensure discharge met the pertinent sta ndards of equity and propriety. The Applicant’s record of service included for o f the Uniform Code of Military Justice (UCMJ): Article (Absence without leave, 20060127 - 20060207, 12 days ) . A review of the Applicant’s in-service medical records indicates he was diagnosed with Adjustment Disorder with Depressed Mood, Personality Diso r der, Anxiety Disorder N ot Otherwise Specified , and Major Depression, Single Episode. Based on the Personality Disorder diagnosis , command administratively processed for separation. When notified of a dministrative separation processing using the procedure, the Applicant waived rights to consult with a qualified counsel, submit a written statement, and request a General Court-Martial Convening Authority review.

Issue 1: (Nondecisional) The Applicant wants his RE Code changed to RE-1. 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 Board 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 he was misdiagnosed with a Personality Disorder, the Marine Corps did not present nonmedical written evidence to show specific examples of how he was unable to function in a military setting, did not counsel him, and did not give him a reasonable opportunity to correct his deficiencies. A review of the Applicant’s medical record shows that he was diagnosed with a Personality Disorder at Naval Hospital Camp Lejeune. Pu rsuant to Marine Corps Separation and Retirement Manual (MARCORSEPMAN) paragraph 6203.3, members may be processed for separation based on a mental health professional’s clinical diagnosis of a P ersonality D isorder 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. O n 15 March 2006, the Commanding Officer, Headquarters and Support Battalion, School of Infantry, Training Command, Camp Lejeune, in the Notification of Separation Proceedings, stated that the basis for recommendation for separation wa s P ersonality D isorder based upon a 7 March 2006 medical officer’s letter. The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that a 6105 retention warning counseling was mandatory. The NDRB presumes that the 7 March 2006 medical officer letter contained the diagnosis of Personality Disorder and recommended expeditious processing. Without any evidence to the contrary, the NDRB presumed regularity in that the Applicant was properly diagnosed by a mental health professional and was

recommended for administrative separation per the MARCORSEPMAN . As to the post-service mental health evaluations, u nless substantial and credible information exists to rebut the medical authority’s findings that occurred at or about the time of the Applicant’s separation from service, the NDRB does not have jurisdictional authority to override medical authority diagnoses or findings that result in administrative separation. Relief denied.

: (NDRB Issue) (Decisional) ( Propriety ) The Applicant’s characterization of service was improperly assigned. During the review of the Applicant’s separation proceedings, the NDRB noted the Applicant was notified of administrative separation proceedings on 15 March 2006 by the Commanding Officer, Headquarters and Support Battalion, School of Infantry, Training Command, Camp Lejeune. In this notification, the Applicant’s command noted that he was being administratively processed for Personality Disorder and the least favorable characterization of service he could receive was General (Under Honorable Conditions). The Applicant eventually received an Uncharacterized characterization of service. An Uncharacterized discharge is warranted when separation is initiated while a member is within the first 180 days of continuous active duty except when the characterization of service as Under Other Than Honorable Conditions is authorized or H onorable is clearly warranted. Calculating from his date of entry on to active duty on 29 August 2005 to his notification date on 15 March 2006, the Applicant was notified of separation proceedings after 200 days of continuous active service and was therefore not eligible for an Uncharacterized discharge. Since the Applicant was administratively separated and not separated upon expiration of enlistment or fulfillment of service obligation, the characterization of service is determined by the quality of the member’s total performance of duty and conduct during the current enlistment, including the reason for separation. Other considerations shall be given to the member’s length of service, grade, aptitude, and physical and mental condition. Based on the Applicant’s record of service, which included a 12-day period of unauthorized absence for which he was found guilty at NJP, the NDRB determined the Applicant’s service was honest and faithful but significant negative aspects of his conduct or performance of duty outweighed the positive aspects of his service record . The NDRB determined he was properly notified that he could receive a General (Under Honorable Conditions) characterization of service and warranted such a characterization. Therefore, the characterization of service will change from Uncharacterized to General (Under Honorable Conditions).

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 the discharge was proper but the characterization of service was improperly assigned. Therefore, the awarded characterization of service shall GENERAL (UNDER HONORABLE CONDITIONS) 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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