ex-, USMC

Current Discharge and Applicant’s Request

Applicant’s Request:     Characterization change to:
         Narrative Reason change to: INSUFFICIENT RETAINABILITY
        
Summary of Service

Prior Service:
Inactive:        USMCR (DEP)      20001020 - 20010617     Active: 

Period of Service Under Review:
Date of Current Enlistment: 20010618    Age at Enlistment:
Period of Enlistment: Years Months
Date of Discharge: 20020520     Highest Rank:
Length of Service: Year(s) Month(s) 03 Day(s)
Education Level:        AFQT: 35
MOS: 0311
Proficiency/Conduct Marks (# of occasions): () / ()   Fitness Reports:

Awards and Decorations (per DD 214):    

Periods of UA/CONF:

NJP:

- 20020222:      Article 115 (Malingering); intentionally injure himself for the purpose of avoiding a training exercise
         Awarded: Suspended:

- 20020327:      Article ; drinking alcohol while under age 21
         Article ; restriction breaking
         Awarded: Suspended:

SCM:

SPCM:

CIVIL ARREST:

CC:

Retention Warning Counseling:

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

         Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, should read: “NATIONAL DEFENSE SERVICE MEDAL, EXPERT RIFLE QUALIFICATION BADGE”
         Block 14, Military Education, should read: “Tan Belt crs (MMB) 1 wk 2001, Rifleman crs (031) 5 wks 2001
         “MARCORSEPMAN 6203.3”
        
The NDRB will recommend to the Commandant of the Marine Corps that the DD 214 be corrected as appropriate.

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:        

Types of Witnesses Who Testified

         Expert:           Character:      

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 that two NJPs he received while in service were improper and should be removed from his record.
2.       The Applicant contends the Psychiatrist evaluation he received while in service was improper and his discharge should be upgraded to Honorable with narrative reason for discharge changed to “Insufficient Retainability.”

Decision


Date: 20150521           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 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 of the Uniform Code of Military Justice (UCMJ): Article 92 (Failure to obey order or regulation), Article 134 (General article; restriction breaking), and Article 115 (Malingering). The Applicant was diagnosed by Division Psychiatrist for Personality Disorder, Not Otherwise Specified with Immature Features and recommended for expeditious administrative separation due to the Applicant’s risk of suicide threats or behavior. Based on the Applicant’s diagnosis and Psychiatrist recommendation, command administratively processed for separation. [Based on the Article 112a violation, processing for administrative separation is mandatory.] When notified of administrative separation processing using the procedure, the Applicant rights to consult with a qualified counsel, and submit a written statement. The Applicant was not entitled to request an administrative board.

As a result of the Applicant’s claim that a mental health diagnosis impacted his discharge, and in accordance with U.S. Code, Title X, Section 1553 (e)(2), the Naval Discharge Review Board included a member who is a physician, clinical psychologist, or psychiatrist. The Applicant’s service record documents the Applicant was diagnosed with a mental health disorder while serving in the armed forces.

: (Nondecisional) The Applicant contends that two NJPs he received while in service were improper and should be removed from his record. As the NDRB does not have the authority to remove a nonjudicial proceeding given under a Commanding Officer, this issue is non-decisional. The Applicant had the right at the time he was notified of charges to refuse NJP and demand a trial by court-martial. Once the Applicant accepted NJP, and was sentenced by his Commanding Officer, his rights were limited to only appealing the NJP sentence to the next senior commander in his chain of command.

: (Decisional) () . The Applicant contends the Psychiatrist evaluation he received while in service was improper and his discharge should be upgraded to Honorable with narrative reason for discharge changed to “Insufficient Retainability.” The Applicant states that his mental health evaluation was improper because he was not properly referred for evaluation, and that he should not have been processed for administrative separation until after he was officially counselled, and afforded an opportunity for corrective behavior. The Applicant was evaluated by proper mental health authority after he displayed suicidal behavior (cutting his wrists with a knife) that his command determined placed him at risk to himself or others. After evaluating the Applicant, the Division Psychiatrist diagnosed him with a Personality Disorder, Not Otherwise Specified with Immature Features, and recommended the Applicant be expeditiously processed for administrative separation because he was determined to be unsuitable for further military service due to suicidal threats and behavior. For a recommendation of expeditious separation, a counselling for corrective behavior is not required prior to processing for separation. Although the Applicant feels that he does not have a long standing Personality Disorder, he provided no evidence, other than his statements, to refute the Psychiatrist’s diagnosis at the time of his recommendation. Unless 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. Further, the Applicant’s misconduct, as evidenced by violations of the UCMJ, warranted his separation with General (Under Honorable Conditions) discharge. 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 remain 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: Effective 6 February 2015, the NDRB is authorized to change a NDRB Applicant’s Reenlistment Code if related to an accompanying change in discharge characterization or narrative, but this authority is strictly limited to those cases where an applicant’s narrative reason or characterization of discharge is changed and that change warrants revision of the previously issued reenlistment code. 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