ex-, USMC
MD07-00964

Current Discharge and Applicant’s Request

Application Received:  20070628 	Characterization Received:  
Narrative Reason:  MISCONDUCT 	Authority:  MARCORSEPMAN 6210.3

Applicant’s Request:	Characterization change to:  
			Narrative Reason change to: 
Applicant’s Issues:	1. VA Benefits
			2. Psychological issues, now documented, attributed to his behavior prior to his discharge
			3. Did not receive the medical assistance in service that he needed

Decision

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

Date:  20080103		Location:  Washington D.C.	 Representation:  

Discussion

Issue 1:   either  which the Board cannot form the basis of relief for the Applicant, or  the Board does not have the authority to grant the relief for which the Applicant petitioned.  The Applicant is directed to the Addendum regarding .  

Issue 2: ().  The Board reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis.  If such a review reveals an impropriety or inequity, relief is in order.  Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval service.  There is credible evidence in the record that the Applicant committed misconduct.  The Applicant does not deny this misconduct.  The NDRB considered the diagnosed combat stress reaction as a mitigating factor associated with the Applicant’s in service misconduct after he returned from Iraq on 20050411.  However, the NDRB noted the Applicant had established a pattern of misconduct prior to his deployment to Iraq.  The NDRB also noted in the Applicant’s post service medical documentation that while he was diagnosed with bi-polar manic depression, there was no documentation stating that the Applicant was not responsible for his actions or his decisions.  Based on the Applicant’s pattern of misconduct and no diagnosis holding the Applicant not responsible, the NDRB determined and upgrade would be inappropriate. 

Issue 3: ().   The Applicant contends that he did not receive the medical assistance he needed.  The Applicant was diagnosed by competent medical authority during his separation physical and was determined fit for separation.  Additionally, the Applicant, during his separation physical did not identify any mental or medical issues.  When a Marine’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions.  An under other than honor conditions  discharge is warranted when significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his failure to meet the standards and requirements of his contract with the Marine Corps and falls far short of that required for an upgrade of his characterization of service.  .An upgrade to honorable would be inappropriate.  

In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Medical and Service Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found that  

Summary of Service

Prior Service:
Inactive: USMCR (DEP)	20020731 - 20021014  		Active:   	
Period of Service Under Review:
Date of Enlistment: 20021015	Years Contracted:  ; Extension:  	Date of Discharge:  20060622
Length of Service:  3  Yrs  6  Mths  6  Dys	Lost Time: 57 Days UA:    Days Confined:  45
Education Level:  	Age at Enlistment:  	AFQT:  32	MOS:  3531  Highest Rank:  
Proficiency/Conduct marks (# of occasions):	3.9(11)/3.2(11)	Fitness reports:   
Awards and Decorations (per DD 214):  Rifle ,  Combat Action Ribbon, Sea Service Deployment Ribbon (2nd AWD), Global War on Terrorism Service Medal, Global War on Terrorism Expeditionary Medal, National Defense Service Medal.

Medical/Service Record Entries Related to Characterization of Service or Basis for Discharge

20030507:	MARCORSEPMAN 6105 counseling for Failure to execute verbal orders.

20031218:	NJP -- Viol UCMJ Art. 92 – Failure to obey an order, Art. 107 – False official statement
	Awarded - FOP ($316.00) for (1 months); Restr for (14 days); Extra duties (14 days).

20031218:	MARCORSEPMAN 6105 counseling for misconduct which resulted in NJP on 20031218.

20040223:	MARCORSEPMAN 6105 counseling for Unauthorized absence.

20040318:	NJP -- Viol UCMJ Art. 86 (2 specs)– Unauthorized absence,  Art. 92 – Failure to obey an order, Art. 111 – Drunk Driving
	Awarded - FOP ($668.00) for (1month); RIR (E-2); Restr for (45 days); Extra duties (45 days).

20040518:	Evaluation Report for Substance Abuse: 
Recommend:  Intensive Outpatient Treatment
	         Weekly visits with Bn SACO
	         Individual should be held strictly accountable for their actions

20040910:	Applicant deploys to Iraq

20050321:	Applicant last combat tour

20050411:	Applicant returns from Iraq

20050427:	Applicant to UA

20050518:	Medical Record:  Reason for visit:  Unusual behavior.  Length of stay 20050518-20050523
	Diagnosis:  Applicant reported that he had gone on an unauthorized absence status after hearing a rumor that his unit would be redeployed soon.  He felt he had survived on deployment to Iraq and was convinced that he would not survive the second deployment.  Applicant had flashbacks of his experiences in Iraq.
	Axis I:	Combat Stress Reaction
		Axis II:	Antisocial and Narcissistic Personality traits
		Axis III:	None
		Axis IV:	Military deployment with combat exposure
		Recommendation:  Follow up as needed

20050519	Applicant from UA

20050525:	NJP -- Viol UCMJ Art. 86 – Unauthorized absence.
	Awarded - FOP ($617.00) for (2 months); RIR (E-1); Restr for (45 days); Extra duties (45days).

20050715:	Applicant to UA
20050815:	Applicant declared a Deserter

20050816:	Applicant apprehended by Lenoir Sheriff Department

20050919:	Special Courts-Martial -- Viol UCMJ Art. 86 – Unauthorized absence (32 days).
	Awarded - FOP (800.00); Confinement (45 days).

20060209:	MARCORSEPMAN 6105 counseling for Pattern of misconduct.

20060512:	Applicant submits conditional waiver for Admin Board to receive no less than a General Discharge.

20060523:	CG denies conditional waiver request

20060524:	NJP -- Viol UCMJ Art. 86 – Unauthorized absence (7 days).
	Awarded - Restr for (14 days).

20060602:	Applicant voluntarily waives his right to an Administrative Discharge Board.

20060619:	Medical Record:  Reason for visit:  Separation Physical
	Diagnosis:  Fit For Separation.  Applicant does not identify any mental issues.
	Recommendation:  Separate

Discharge Process

Date Notified:	20060213
Basis for Discharge:	 DUE TO:  
	
Least Favorable Characterization:	
Commanding Officer’s Intended Recommendation:	

Date Applicant Responded to Notification:		20060214
Rights Elected at Notification:
	Consult with Counsel			
	Obtain Copies of Documents		
	Submit Statement(s) (date)			  
	Administrative Board			 / Waived 20060602

Commanding Officer Recommendation (date):	 (20060317)
SJA review (date):	 
Separation Authority (date):	CG 2nd MARDIV(20060615)
              Basis for discharge directed:	 DUE TO:  
              Characterization directed:	
Date Applicant Discharged:	20060621

Types of Documents Submitted by Applicant and Considered By Board

Related to Military Service:	Service and/or Medical Record:  		Other Records:  

Related to Post-Service Period:  	
	Employment:  			Finances:  			Education: 		
	Health/Medical Records:  		Substance Abuse:			Criminal Records:  	
	Family/Personal Status: 		Community Service:  		References:  		
	
Additional Statements From Applicant:  	From Representative:    
Other Documentation (Describe)       
Pertinent Regulation/Law

A.  Paragraph 6210, MISCONDUCT, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 01 Sep 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.

C.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 86 [Unauthorized absence (more than 30 days)], Article 92 (Failure to obey an order), Article 107 (False official statement), Article 111 (Drunk driving).

ADDENDUM:  Information for the Applicant

Complaint Procedures:  If you believe that 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:  Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years from the 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.  If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

Service Benefits:  The Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board.  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 Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’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 Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.  Additionally, the Board 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 subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended.  The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings.  If the action includes either a punitive or administrative discharge for misconduct, 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 “PTSD.”  Only the Board for Correction of Naval Records can grant this type of narrative reason change.  

Automatic Upgrades - There is no law or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving Naval service.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge 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.  Examples of documentation that may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  

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 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.  

Board Membership:  The names and votes of the members of the 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