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Decision Text

USMC | DRB | 2014_Marine | MD1400129
Original file (MD1400129.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20131106
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MARCORSEPMAN

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

Summary of Service

Prior Service:
 Inactive:         USMCR (DEP)       20130301 - 20130415     Active:  

Period of Service Under Review:
 Date of Current Enlistment: 20130416     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20131016      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 01 D a y ( s )
Education Level:        AFQT: 52
MOS: NONE
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness Reports:

Awards and Decorations ( per DD 214):      Rifle

Periods of UA / CONF :

NJP:

- 20130924 :      Article (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer , 2 specifications )
         Specification 1: Disobey an order from SSgt O_ by refusing to train on 20130906
         Specification 2: Disobey an order from 1stSgt B_ by refusing to train on 20130909
         Article 115 (Malingering)
         Awarded: Suspended:

SCM:     SPCM:    CC:

Retention Warning Counseling:

- 20130906:      For refusal to train [Extracted from Commanding Officer, Headquarters and Support Battalion, School of Infantry (West) Recommendation for Administrative Separation Letter dated 07 October 2013]

- 20130926 :      For your battalion level NJP on 20130926 for violation of the UCMJ, specifically Article 91, insubordinate conduct toward warrant officer, noncommissioned officer or petty officer, in that SNM did refuse to train to SSgt O_ on 201 3 0906 at 0930; Article 91, insubordinate conduct toward warrant officer, noncommissioned officer or petty officer, in that SNM did refuse to train to 1stSgt B_ on 20130909 at 1100; Article 115, malingering in that SNM did feign while in D Co in an effect to receive a PEB






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 6210, MISCONDUCT , 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 ’s wife contends he was suffering from medical issues and wa s innocent of malingering.

Decision

 Date: 20 1 4 0618            Location: Washington D.C .         R epresentation :

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

 The Applicant’s wife is requesting, posthumously, to upgrade her husband’s characterization of service at discharge. The NDRB sends its sincere condolences and acknowledges this request is an important issue to the Applicant’s family. Although requests by families to upgrade the characterization of d eceased service member s are infrequent, they are not unique. The NDRB reviews these cases in an objective manner as if the Applicant was still living , however, the NDRB also takes into consideration that certain documentary or testimonial evidence may not be available or reasonable to obtain.
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 standards of equity and propriety. The Applicant’s record of service included 6105 counseling warnings and for o f the Uniform Code of Military Justice (UCMJ): Article 91 ( Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer , two specific ation s) and Article 115 ( Malingering, one specification ) . Based on the offenses committed by the Applicant, 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 an administrative board .

: (Decisional) ( ) . The Applicant ’s wife contends he was suffering from medical issues and was innocent of malingering . When reviewing a discharge, the NDRB does consider the extent to which a medical problem might affect an Applicant’s performance and ability to conform to the military’s standards of conduct and discipline. A review of the available medical notes concerning the Applicant revealed a 31 August 2013 diagnosis of C onversion D isorder by a staff psychiatrist at Naval Medical Center San Diego. Medical notes from the neurology department on that same date stated they did not believe there was an organic cause for his symptoms and believed he was either malingering or had a somatization disorder. Additional medical notes from the Applicant’s 04 September 2013 hospitalization discharge summary list his diagnoses as both C onversion D isorder and A djustment D isorder with recommendations for administrative separation due to both diagnoses. Service members may be processed for separation based on a mental health professional’s clinical diagnosis of a mental d isorder when the disorder is so severe that one’s ability to function effectively and perform their duties is significantly impaired . The NDRB noted that these diagnoses and recommendations occurred before the Applicant’s in-service misconduct on 06 and 09 September 2013 . Follow - up visits with licensed clinical psychologists on 05 and 12 September 2013 confirmed continued diagnoses of the Applicant’s C onversion and A djustment D isorders.

The NDRB determined the Applicant’s misconduct should not have merited an Under Other Than Honorable Conditions discharge as there was evidence of unusual circumstances involving his mental health diagnos e s. However, due to his limited time in service and recommendations for separation before he completed 180 days of active service, an Honorable characterization is not appropriate. 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.



T he 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 Board for Correction of Naval Records can grant this type of narrative reason change. 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 expira tion of their term of service. Given the unusual circumstances of the Applicant’s psychiatric diagnos e s and its relationship to his post - diagnosis misconduct , the NDRB determined the narrative reason for separation of Misconduct is not appropriate. After a careful review of the Applicant’s post-service documentation and official service records, and taking into consideration his spouse’s testimony and the facts and circumstances unique to this case, the NDRB determined relief is warranted based on equitable grounds. The NDRB voted unanimously to change the characterization of service to Uncharacterized and the narrative reason for separation to Secretarial Authority. Partial relief granted. Full relief to Honorable was not granted since the Applicant had served for less than 180 days, and the narrative reason for separation was not changed to Medical since the NDRB does not have that authority, and his diagnoses of Conversion and Adjustment Disorders should have resulted in a discharge for a Condition, Not a Disability. The Applicant, however, was not notified of this reason for separation , and so Secretarial Authority is the most appropriate reason for separation.

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 change to . The Applicant is not eligible for further reviews by the NDRB. The Applicant ’s wife may petition the Board for Correction of Naval Records, 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 for further review using DD Form 149. Their website can be found at http://www.donhq.navy.mil/bcnr/bcnr.htm . The Applicant ’s wife 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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