ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20080813
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) 20030821 - 20031215  		Active:  

Period of Service Under Review:
Date of Enlistment:  20031216	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20050812	Highest Rank:  
Length of Service:    Year     Months   27  Days
Education Level:  	AFQT:  64
MOS:  5937
Proficiency/Conduct Marks (# of occasions):   () /  ()         Fitness Reports:  

Awards and Decorations (per DD 214):  Rifle    

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

NJP:  
- 20050613:  Article 91 (Willfully disobeying a warrant officer)
                       Awarded:      Suspended:  

Retention Warning Counseling:  

-  20050613:  For NJP for insubordinate conduct toward a warrant officer

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:		Substance Abuse:			Criminal Records:	
	Family/Personal Status: 		Community Service:  		References:  		
              Additional Statements: 
                             From Applicant:  	From Representation:         	From Congress member:    

                    Other Documentation:  
		- Information from world-wide web regarding the drugs Wellbutrin and Lexapro

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

Applicant’s Issues

1.  Record of service.
2.  Placed on too many medications.

Decision

Date:  20081211	          Location: Washington D.C.	 Representation: 

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  PERSONALITY DISORDER.

Discussion

:  ()  .  The Applicant contends he is entitled to a discharge upgrade due to his record of service.  Specifically, he contends his proficiency and conduct marks and recommendations for an “Honorable” discharge from two officers in his chain of command warrant an upgrade.  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 record of service was marred by one retention warning and one NJP for violation of the Uniform Code of Military Justice (UCMJ):  Article 91 (Willfully disobeying a warrant officer), in that he disobeyed an explicit order given to him by his Officer in Charge. Violation of Article 91 is considered a serious offense, punishable by punitive discharge and confinement if adjudicated and awarded by a special or general court-martial. The command did not pursue a punitive discharge but instead opted to retain the Applicant.  

The Applicant appears to understand his average proficiency and conduct marks were 4.4/4.4.  These marks were the Applicant’s average before his NJP. However, his record reflects the final average proficiency and conduct marks were 4.4/4.0.  The NDRB rejects the Applicant’s contention.  While his average proficiency and conduct marks indicate acceptable average marks if determined at the end of an enlistment, his misconduct represents a significant negative aspect of his record of service.  Furthermore, although the Applicant did receive two recommendations for an “Honorable” characterization of service, the final determination was made by the Commanding General.  The Commanding General may consider recommendations to assist in determining the characterization of service, but he was under no obligation to abide by the recommendations.  The NDRB determined the awarded discharge characterization as determined by the Commanding General was appropriate and an upgrade founded on the Applicant’s record of service would be inappropriate. 

:  ()  .  The Applicant contends he is entitled to a discharge upgrade because he was placed on too many medications.  Specifically, the Applicant contends the medications prescribed caused the suicidal ideations which lead to his discharge.   It appears the Applicant is disputing the narrative reason for his discharge, “Personality Disorder”.  Although the Applicant does not explicitly state this in his Application, the NDRB conducted a review based on this presumption.  The record of evidence indicates the Applicant was initially seen by Mental Health on 15 April 2005 with a complaint of seven months of depressive symptoms, including reports of having “entertained the idea of suicide...” The Applicant was prescribed the drug Wellbutrin on this date, but the prescription was changed to Lexapro one week later.  The Applicant included information from the Food and Drug Administration with his DD-293 Application showing these drugs can lead to, or increase the severity of, suicidal thoughts.  While the Applicant may feel the medications he was prescribed exacerbated his suicidal ideations, the record of evidence clearly shows these thoughts existed prior to taking the medications.  Furthermore, the Applicant was diagnosed by competent medical authority with “severe chronic Adjustment Disorder, the product of his inability to adapt to military service.”  The Applicant’s suicidal ideations were used only as a basis to expedite his discharge. 

The Applicant requested an upgrade to “Honorable” in his discharge characterization.  For the edification of the Applicant, when the quality of a member’s service has met the standards of accepted conduct and performance of duty for military personnel, it is appropriate to characterize that service under “Honorable” conditions.  A “General (Under Honorable Conditions)” is appropriate if the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance outweighs positive aspects of the member’s military record.  The Applicant’s misconduct was determined to warrant a “General (Under Honorable Conditions)” by his command and the Board determined the characterization was appropriate given the serious misconduct also contained in the Applicant’s service record.  An upgrade based on the medications prescribed to the Applicant 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 

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.

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 91.

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, 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