ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20080826
Characterization of Service Received:  
Narrative Reason for Discharge:  
Authority for Discharge:  MARCORSEPMAN 

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

Summary of Service

Prior Service:
Inactive: USMCR (DEP)	-2000621 - 2000625  		Active:   

Period of Service Under Review:
Date of Enlistment: 20000626	Period of Enlistment:   Years   Months	Date of Discharge:  20011018
Length of Service:    Year    Months   23  Days	Education Level:  	Age at Enlistment:  
AFQT:  82   MOS:  2800	  Highest Rank:  	   Fitness Reports:  
Proficiency/Conduct Marks (# of occasions):	   () /  ()
Awards and Decorations (per DD 214):  Rifle  Pistol 

Periods of UA:  20010927 – 20010927 0745-1030

NJP:  
- 20010417:  Article 86 (UA)
                     Article 134 (Self-injury with intent to avoid service)
                     Awarded:      Suspended:   

- 20011102:  Article86 (UA)
                     Article 91 (Insubordination to a warrant officer)
                     Article 92 (Failure to obey a lawful order)
                     Article 108 (Loss or damage to government property)
                     Article 134 (Malingering)
                     Awarded:     Suspended:   

SCM:      SPCM:      CC:  

6105 Counseling:  
- 20010408:  For violation of Article 134 (consuming alcohol underage).

- 20010905:  For personality disorder.

- 20010905:  Failure to secure a controlled substance, Ritalin.

- 20010928:  For violation of:  Article 86 (UA)
                                                 Article 91 (Insubordination to a warrant officer)
                                                 Article 92 (Failure to obey a lawful order) 
                                                 Article 108 (Loss/damage to government property)
                                                 Article 134 (Malingering)

Types of Documents Submitted/reviewed

Related to Military Service:	DD 214:  	Service and/or Medical Record:  		Other Records:  

Related to Post-Service Period:	
	Employment:			Finances:			Education/Training:	
	Health/Medical Records:		Substance Abuse:			Criminal Records:	
	Family/Personal Status: 		Community Service:  		References:  		
Additional Statements From Applicant:  		From Representation:  		From Member of Congress:  

Other Documentation (Describe):  

Pertinent Regulation/Law

A.  Paragraph 6210, MISCONDUCT of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), 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.

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, Articles 91, 92, 108 and 134.

DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

1.  Misconduct was due to medical condition.
3.  Was given erroneous legal advice.
2.  Post service conduct.

Decision

Date:  20081204		Location:  Washington D.C.	 Representation:  

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  MISCONDUCT (COMMISSION OF A SERIOUS OFFENSE).

Discussion

:  ()  .  The Applicant states his misconduct was a direct result of his alcohol dependency, depression, ADHD, and his inability to adapt to living in the desert at Twenty-nine Palms, California.  The Applicant claims his medical conditions went untreated and he continued to drink as a means of coping.  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.  The Applicant’s service record was marred by 4 retention orders and 2 NJP’s for violations of the Uniform Code of Military Justice (UCMJ):  Article 86 (UA); Article 91 (Insubordination to a warrant officer); Article 92 (Failure to obey a lawful order); Article 108 (Loss or damage to government property); Article 134 (Malingering and self-injury with intent to avoid service).  These are serious violations and could have resulted in a punitive discharge and confinement if adjudicated and awarded as part of a sentence by a special or general court martial.  The command did not pursue a punitive discharge but opted instead for an administrative discharge. 

A review of the Applicant’s medical records reveals he was diagnosed with a Personality Disorder, ADHD and alcohol dependency.  The Applicant entered partial hospitalization at the Naval Addictions Rehabilitation and Education Department at Naval Hospital, Camp Pendleton, CA from 09 April 2001 until 01 May 2001.  He completed the program and was given a 12 month After Care Recovery Plan to follow.  Additionally, he was seen routinely by a military staff psychiatrist at the R_ D. B_ Naval Hospital at Twenty-nine Palms, CA for his depression and ADHD.  Medical records reveal he was taking Ritalin to control his ADHD.  In a report on the Applicant dated 15 August 2001, the psychiatrist states the member is not considered seriously mentally ill or an immediate danger to himself or others.  He writes the Applicant is fit for full duty and should be held accountable for his behavior and actions.  However, the psychiatrist recommends expeditious discharge based on the Applicant’s history of misuse of his stimulant medication and his low impulse control which may present a risk to others.  None of his medical reports address his inability to adapt to living in Twenty-nine Palms California as a mitigating reason for his misconduct.  Other than his personal statement, the Applicant provides no supporting documentation to verify his claims.  Considering the above facts, the Board determined the awarded discharge characterization was appropriate and an upgrade would be inappropriate.

:  ()  .  The Applicant claims he was offered either a Section 8 or a “General (Under Honorable Conditions)” discharge characterization.  He states he accepted the “General (Under Honorable Conditions)” because he was told it could be upgraded in 6 months.  In the Notification of Separation Proceedings letter sent to the Applicant from his Commanding Officer dated 27 September 2001, the Applicant is informed he is being processed for separation under two categories, Personality Disorder and Commission of a Serious Offense.  He is told the primary reason for separation will be Commission of a Serious Offense and the character of service he is being recommended for is “Under Other Than Honorable Conditions”.  The Applicant initialed he had received and understood the basis for his separation in the Acknowledgement of My Rights to be Exercised or Waived in Separation Proceedings letter sent by him to his Commanding Officer dated 27 September 2001.  No where in these letters was the Applicant offered a “General (Under Honorable Conditions)” discharge 

characterization.  Since the Applicant provides no documentation or statements from witnesses to support his claim, the Board determined the awarded discharge characterization was appropriate and an upgrade would be inappropriate. 

:  ()  .  The Applicant states he has been sober for 6 years, attends AA meetings daily and is dealing with his personality disorder and depression.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  However, 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 the civilian life subsequent to leaving the service.  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.  The key word here is “Outstanding”.  The Board is looking for actions that go beyond simply daily living.

Although the Applicant states he has matured and changed, he did not provide a personal statement, supporting documentation of post service accomplishments or character witness statements to support his request for an upgrade.  The Applicant's efforts need to be more encompassing.  For example, the Applicant could have produced evidence of a verifiable employment record; letters of reference from employers or community leaders; documentation of community/church volunteer service; evidence of a alcohol free existence, and certification of non-involvement with civil authorities, evidence of financial stability; marriage or birth certificate, and a copy of college transcripts/diploma or training certificates.  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 conduct mitigates the reason for the characterization of discharge.  Without having the necessary documentation to review, the Board determined an upgrade or change would be inappropriate.  

After a thorough review of the available evidence, to include the Applicant’s Summary of Service,  Record, Discharge Process and evidence submitted by the Applicant, the Board found 

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 or is referred to a court-martial 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 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 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 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 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