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

 ex-LCpl, USMC
Docket No. MD04-01206

Applicant’s Request

The application for discharge review was received on 20040722.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record discharge review.  The Applicant did not designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041222.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain:  GENERAL (UNDER HONORABLE CONDITIONS)/CONDITION NOT A PHYSICAL OR MENTAL DISABILITY, authority: MARCORSEPMAN Par. 6203.2.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

  “  I  request to this Board that my discharge be changed from Under Honorable Conditions to one of Honorable status.  I feel that my discharge was inequitable due to the fact that it was based on a separation code of JFV1-involuntary due to medical condition not a disability caused by a sprained back.  I wish to upgrade my discharge because I would some day like the opportunity to re-enlist in another branch of service such as the National Guard or the like.  I have very strong pride in my time as a US Marine, and would like my discharge to reflect this.  I made some mistakes during my time in service, however, the core values of honor, courage and commitment the Marine Corps instilled in me still hold true to this day.  I continue to be an upstanding citizen, holding a full time position at one of the top securities litigation firms in New York City.  My husband is an Officer Candidate in the US Navy, and I want our son to know that his mother was also once part of the greatest military in the world, and was discharged honorably.  I take a lot of pride in the fact that I was a Marine, and if the saying holds true, Once a Marine, Always a Marine, I want to know my time in service was considered Honorable.”

Documentation

In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:

Applicant’s DD Form 214
Standard Form 180

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

	Active:   None
	Inactive: USMCR(J)		960606 - 961022	COG

Period of Service Under Review:

Date of Enlistment:  961023		Date of Discharge:  990125

Length of Service (years, months, days):

	Active:    02  03  03
	Inactive:  None

Age at Entry:  20			Years Contracted:  5

Education Level:  12			AFQT:  94

Highest Rank:  LCpl			MOS:  2811

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.3 (4)		Conduct:  3.6 (4)

Military Decorations:  None

Unit/Campaign/Service Awards:  RSB

Days of Unauthorized Absence:  None

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

GENERAL (UNDER HONORABLE CONDITIONS)/CONDITION NOT A PHYSICAL OR MENTAL DISABILITY, authority:  MARCORSEPMAN Par. 6203.2.

Chronological Listing of Significant Service Events:

961024:	Medical Care: History of cervical HNP.  Consult to S/C.  A: Subjective back pain due to MVA 1994.  P: 1. CMR’s.  2.  Motrin 800 mg.  3.  Return to clinic as needed.

970626:	Counseled for deficiencies in performance and conduct.  [Conduct unbecoming of a Marine.  Failure to use good judgment.  Inability to face challenges head-on.  Financial irresponsibility and lack of self-discipline.  Applicant is seriously lacking in professionalism expected from the most basic Marine.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

970709:	Mental Health: Dx: AXIS I: Occupational problem.  Alcohol abuse, rule out dependence.  AXIS II: Personality disorder with borderline and antisocial features, EPTE.  AXIS III:  Chronic pelvic pain.
	Applicant is psychiatrically fit for duty.   

971008:	Counseled for deficiencies in performance and conduct.  [Having on numerous occasion’s been in violation of Article 86 of the UCMJ.  You have consistently demonstrated an inability to meet your most basic responsibility of being at your appointed place of duty at the appointed time.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

971023:	NJP for violation of UCMJ, Article 86:
Specification: Unauthorized absence from appointed place of duty on 0550, 970926, to wit: Morning PT.
Awarded forfeiture of $100.00 per month for 1 month, restriction and extra duties for 14 days.  Not appealed.

971023:	Counseled for deficiencies in performance and conduct.  [Failure to conform to Marine Corps standards, specifically my recent NJP for violations of Article 86 of the UCMJ.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

971028:	Medical care: Applicant to MSC with compliant of 1 week history of back pain.  A: Muscle strain, right paraspinal/bilat traps.  P: 1. Warm moist compresses/back exercises (instructions provided).  2. Limited duty for 1 week, PT at own pace.  3. Robaxin.  4. Retrieve reports from civilian MO re previous injury.  5. Return in 1 week if no improvement, sooner if conditions worsens.

971112:	Medical care: Follow up for unresolved back pain.  A: Bilat traps spasm.  .  2.  Limited duty no running push ups.  3. Heat AAA.  4. Return to clinic as needed.

971120:	NJP for violation of UCMJ, Article 86:
Specification: Unauthorized absence from 1300, 971101 to 0248, 971102.
Violation of UCMJ, Article 134:
Specification: Break restriction on 1300, 981101
Awarded forfeiture of $225.00 per month for 1 month, restriction and extra duties for 14 days.  Not appealed.

971120:	Counseled for deficiencies in performance and conduct.  [Failure to conform to Marine Corps standards, specifically my recent NJP for violations of Article(s) 86 and 134 of the UCMJ.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

980105:	Follow up Note: Assessment:  AXIS I: No diagnosis.  AXIS II: Personality disorder not otherwise specified with borderline and antisocial features.  AXIS III: Chronic back problem.  Chronic pelvic pain.

980210:	Six month limited Duty Board was convened on Applicant and recommended the following limitations be placed Applicant’s duty responsibilities: No running, formations, pull ups, or sit ups. May PT at own pace (walk/machines).  The expiration date for these limitations is 980809.

980224:	Follow up Note: Assessment: Personality disorder not otherwise specified with borderline and antisocial features, not incapacitating.  Chronic back and pelvic pain.  Plan:  Start Zoloft as noted above.  Follow-up in 2 weeks.

980310:	Follow up note: Assessment: AXIS I: No diagnosis.  AXIS II: Personality disorder not otherwise specified with borderline and antisocial features, not incapacitating.  AXIS III: Chronic back and pelvic pain.  Plan: Zoloft 50 mg.  No refills.  Follow-up in 3 weeks, or sooner as needed.  Return to full duty.

980820:	Mental Health Evaluation: Assessment: AXIS I:  No diagnosis.  AXIS II:  Personality disorder not otherwise specified with borderline an impulsive features.  AXIS III: Chronic back pain (on LIMDU for 6 months, on 3 months extension).

981228:	Counseled for deficiencies in performance and conduct.  [Per the reference, MCO 1900.16E dated 961014, Applicant has been evaluated by a Medical Officer for her spinal chronic pain and was found to have a “physical condition, not disability”.  Applicant has been through extensive evaluation by competent medical authority for this condition and has aggressively attempted to comply with Medical’s recommendations for rehabilitation of the condition without significant improvement, such that this is considered “beyond the individual’s control”.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

990125:	DD Form 214: Applicant discharged with a general (under honorable conditions) by reason of physical condition not a disability, authority:  MARCORSEPMAN Par. 6203.2.

Applicant’s discharge package is missing from service record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19990125 with a characterization of general (under honorable conditions)/condition not a physical or mental disability (A).  After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (B and C).  The presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package (D).

Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, NDRB is not authorized to change a reenlistment code.  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.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.

Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no impropriety after a review of Applicant’s case.  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, however, 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 should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities.  As of this time, the Applicant has not provided any documentation for the Board to consider.  Relief denied.

When the service of a member of the U.S. Marine Corps has been honest and faithful, it is appropriate to characterize that service as honorable.  A General 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 service was marred by 2 nonjudicial punishment proceedings for violations of Articles 86 and 134 of the UCMJ.  Also, the Applicant was diagnosed with a "Personality Disorder with borderline and antisocial features EPTE” and determined to be “psychiatrically fit for duty” by competent medical authority at the Mental Health Department, Naval Hospital, 29 Palms, CA.  The Applicant’s conduct, which forms the primary basis for determining the character of her service, reflects her willful failure to meet the requirements of her contract with the U.S. Marine Corps and falls far short of that required for an upgrade of her characterization of service.  Relief is not warranted.

The Applicant remains eligible for a personal appearance hearing, provided an 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 other evidence related to her discharge at that time.  Representation at a personal appearance hearing is recommended but not required.
.

Pertinent Regulation/Law (at time of discharge)

A.  Marine Corps Separation and Retirement Manual, (MCO P1900.16E, effective 18 Aug 95 until 31 Aug 2001), paragraph 6203, CONVENIENCE OF THE GOVERNMENT

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

PART IV - INFORMATION FOR THE APPLICANT

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 Directive 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Directive.  You should read Enclosure (5) of the Directive 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 Directive 1332.28 and other Decisional Documents by going online at “http://Boards.law.af.mil”.

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