ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20091113
Characterization of Service Received:  
Narrative Reason for Discharge:  
Authority for Discharge:  MARCORSEPMAN 

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

Summary of Service

Prior Service:
Inactive:	USMCR (DEP)	20070223 - 20070429  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  20070430	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20090831	Highest Rank:  
Length of Service:    Year(s)    Month(s)  00  Day(s)
Education Level:  	AFQT:  60
MOS:  1141
Proficiency/Conduct Marks (# of occasions):   () /  ()	Fitness Reports:  

Awards and Decorations (per DD 214):	 

Periods of CONF:  

NJP:  

- 20080808:	Article 86 (UA 20080707-20080804, 28 days)
	Article 92 (Violated a lawful order by placing multiple tattoos on her face)   
	Awarded:     Suspended:  

- 20090303:	Article 86 (UA 20090219-20090223, 4 days) 
	Awarded:     Suspended:  

SCM:  

SPCM:  

CC:  

- 20090727:	Offense:  DUI [Extracted from Commanding Officer’s letter dated 20090818 and Local Law Enforcement Police Report contained in separation documentation]
	Sentence:  NFIR

Retention Warning Counseling:  4

- 20080812:	For recent diagnosis of Depressive Disorder, Alcohol Dependence, and Eating Disorder, which interferes with your duties, specifically , the inability to participate in rigorous exercises, conditioning hikes, and field duty.    

- 20080912:	For recent diagnosis of Depressive Disorder, Alcohol Dependence, and Eating Disorder, which interferes with your duties, specifically , the inability to participate in rigorous exercises, conditioning hikes, and field duty.    

- 20090311:	For violation of Article 86, UCMJ, in which you received Company NJP on 20090311.   

- 20090812:	For violation of Article 111, driving while under the influence of alcohol.  On 20090727 you were involved in a motor accident resulting in a DUI charge.  You were driving when you struck a parked vehicle.  Upon being arrested under suspicious of DUI you were found to have a BAC level of 0.187.     

Administrative Corrections to the Applicant’s DD 214

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

  “UNDER OTHER THAN HONORABLE CONDITIONS"
	  “(28) 20080707-20080804; (4) 20090219-20090223”
	
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:	

Pertinent Regulation/Law

A.  Paragraph 6210, MISCONDUCT, 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.	Decisional issue: The Applicant contends that she was separated improperly pursuant to a pattern of misconduct when she should have been separated for Convenience of the Government – Personality Disorder separation.    

Decision

Date:  20110210		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 NDRB 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 Applicant identified one decisional issue for the NDRB’s consideration.  The NDRB completed a thorough review of the circumstances that led to the Applicant’s discharge, and the discharge process, to ensure the discharge met the pertinent standards of both propriety and equity.  

The Applicant entered military service at age 20 on a four-year enlistment contract with the United States Marine Corps.  The Applicant’s military service record during this period of enlistment included four paragraph 6105 retention-counseling warnings and two nonjudicial punishments for violations of the Uniform Code of Military Justice (UCMJ), specifically, Articles 
•	86 (Absence without leave – specifically absenting herself without authority for 28 days (20080707 – 20080804) and for 4 days (20090219 – 20090223)
•	92 (Violation of a lawful order  - specifically, for placing multiple tattoos on her face).

Additionally, on 27 July 2009 the Applicant was arrested by local law enforcement authorities for Driving Under the Influence of Alcohol with a single vehicle motor-vehicle accident.  The Applicant’s blood alcohol content was determined to be 0.187% alcohol by volume.     

Based on the offenses committed by the Applicant, the command administratively processed her for separation.  The NDRB reviewed the Applicant’s administrative separation package to determine the Applicant’s election of rights as related to administrative separation.  When notified of the administrative separation processing using the  notification procedure, the Applicant elected to waive her rights to consult with qualified counsel, to submit a written statement to the Separation Authority, or to elect her right to present her case for retention to an administrative discharge hearing board.  

The Applicant provided her entire Administrative Separation Package and her medical documentation from appropriately credentialed mental health care providers for consideration by the NDRB.  

:  (Decisional) ()  .  The Applicant contends that she was separated improperly pursuant to a pattern of misconduct when she should have been separated for Convenience of the Government – Personality Disorder.  The NDRB conducted a thorough review of the circumstances that led to the Applicant’s discharge, and the discharge process, to ensure her discharge met the pertinent standards of equity and propriety.  In regards to propriety, the Applicant’s two non-judicial punishments, coupled with the multiple 6105 retention counseling warnings and the civilian arrest, properly satisfied the requirements established for separation based on a demonstrated pattern of misconduct pursuant to paragraph 6210.3 of the Marine Corps Separation and Retirement Manual (MARCORSEPMAN).  

The Applicant was evaluated by appropriately credentialed mental health care providers who diagnosed the Applicant as having a Personality Disorder; specifically, Depressive Disorder (not otherwise specified), eating disorder (not otherwise specified), and alcohol dependence.  A diagnosis of a personality disorder is not a requirement for mandatory separation.  The mental health providers provide the local commander with recommendation for separation.  In the Applicant’s case, the recommendation for separation also included a history of psychiatric treatment and suicide attempts, prior to enlistment, which the Applicant failed to divulge in her pre-enlistment documentation, as required.  The Applicant was not believed to be a direct harm to herself, or to others; therefore, she was not recommended for consideration under expeditious separation handling.  As such, the Applicant was counseled on her treatment recommendations and her misconduct and was provided an opportunity to undertake corrective actions.  

In accordance with paragraph 6203.3 of the MARCORSEPMAN, members may be processed for separation based on a mental health professional's clinical diagnosis of a personality disorder when that disorder is so severe that one's ability to function effectively is significantly impaired.  However, pursuant to the MARCORSEPMAN, separation for personality disorder is not appropriate when separation is warranted for any other reason (e.g., member meets minimum criteria for misconduct processing).  

Characterization of service at discharge is founded on recognition of a Marine’s performance and conduct, and is not necessarily dependent upon the narrative reason for separation.  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) discharge is appropriate if the member’s service has been honest and faithful, but significant negative aspects of the member’s conduct or performance outweigh the positive aspects of the member’s military record.  An Under Other Than Honorable Conditions discharge is warranted when a member engages in conduct involving one or more acts or omissions that constitute a significant departure from the conduct expected of members of the Naval Service  

The Applicant’s record of performance and conduct clearly reflected a documented pattern of misconduct.  Additionally, the Applicant’s service record reflects that she was counseled formally for her misconduct and provided numerous opportunities to take corrective action to avoid separation from the service.  The NDRB determined that the Applicant’s conduct, which forms the primary basis for determining the character of her service at discharge, reflected acts or omissions that constituted a significant departure from the conduct expected of a service member and that the awarded characterization of service was both equitable and consistent with the characterization of discharge given others in similar circumstances.
 
The record of evidence reflects that the Applicant met the requirements for processing by reason of Misconduct (Pattern of Misconduct) as notified.  The NDRB determined there was no impropriety because of an error of fact, law, procedure, or discretion with the discharge.  Additionally, the NDRB did not discern an inequity in the characterization of the Applicant’s service; as such, an upgrade in characterization of service or change to the narrative reason for separation based on propriety or equity would be inappropriate.  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   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, specifically the paragraphs titled Additional Reviews and Post-Service Conduct.

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 Disabled 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), 2 Navy Annex, Washington, DC 20370-5100 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