ex-, USMC

Current Discharge and Applicant’s Request

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

Summary of Service

Prior Service:
Inactive:        USMCR (DEP)      20090608 - 20090712     Active: 

Period of Service Under Review:
Date of Current Enlistment: 20090713    Age at Enlistment:
Period of Enlistment: Years Months
Date of Discharge: 20120606     Highest Rank:
Length of Service: Year(s) Month(s) 24 Day(s)
Education Level:        AFQT: 96
MOS: 2600
Proficiency/Conduct Marks (# of occasions): 4.2()/4.2(NFIR)     Fitness Reports:

Awards and Decorations (per DD 214):     Rifle CoA

Periods of UA/CONF:     NJP:     SCM:     SPCM:    CC:

Retention Warning Counseling: 3

- 20111011:      For disorderly, disrespectful, and unprofessional conduct toward civilian instructors. Rebuttal noted

- 20111219:      For Adjustment disorder with disturbance of conduct and personality disorder NOS with borderline and paranoid features. Rebuttal noted

- 20120404:      For failure to use sound judgement, unsafe conduct while on liberty, unprofessional conduct as a Marine, and lack of personal accountability. Rebuttal noted

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. Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 1 September 2001 and Present, paragraph 6203, CONVENIENCE OF THE GOVERNMENT.

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 that she should have had an opportunity for a MEB, and was never given that opportunity although she placed the request for medical separation in writing.
2.       The Applicant contends that her discharge should have been honorable based on the recommendation of her Commanding Officer, and the fact that she had no NJPs or courts martial.
3.       The Applicant contends that her behavioral changes were a result of her medical problems, and the prescription medications that she was on.

Decision


Date: 20141230           Location: Washington D.C.        Representation:

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 governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Board completed a thorough review of the circumstances that led to the Applicant’s 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. The Applicant’s command administratively processed for separation. When notified of administrative separation processing using the procedure, the Applicant rights to consult with a qualified counsel, and submit a written statement. Due to her length of time in service and the characterization of her discharge, the Applicant was not eligible for an administrative board.

: (Nondecisional) The Applicant contends that she should have had an opportunity for a MEB, and was never given that opportunity although she placed the request for medical separation in writing. 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. Further, only the BCNR can grant a MEB after discharge. The Applicant is encouraged to contact the BCNR for relief.

: (Decisional) () . The Applicant contends that her discharge should have been honorable based on the recommendation of her Commanding Officer, and the fact that she had no NJPs or courts martial. The Commanding Officer makes a recommendation to the Separating Authority; however, the decision of the characterization of discharge rests solely with the Separating Authority. Furthermore, misconduct does not have to be formally adjudicated as part of an NJP or Court Martial in order to affect the characterization of discharge. That said, the record clearly indicates that the Applicant suffered from a mental health disorder, and that the misconduct that occurred was a direct result of that disorder, as stated by the psychologist who originally made that diagnosis: “…the Behavioral Health Physician who diagnosed Lance Corporal Powers, relayed to the investigating officer that her [false] allegations were consistent with her diagnosed mental disorders.” For this reason, the NDRB determined that the Applicant was not responsible for her conduct, and voted 5-0 to grant relief.

: (Decisional) () . The Applicant contends that her behavioral changes were a result of her medical problems, and the prescription medications that she was on. Although the Applicant provided literature that documented the possible changes in behavior associated with Cumadin, and provided a letter from a doctor that stated that the prescription drug was in use at the time she was involved in an altercation with her professors, the board determined that although the incident resulted in a page 11 counseling, it was not the reason for her discharge. Further, the letter from the physician indicates that the Applicant was being switched to another medication to mitigate side effects. There was no evidence showing that all subsequent misconduct was due to the side effects of any particular drug or treatment regimen. 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 change to HONORABLE and the narrative reason for separation shall remain CONDITION, NOT A DISABILITY. 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