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

ex-Pvt, USMC
Docket No. MD00-00997

Applicant’s Request

The application for discharge review, received 000823, requested that the characterization of service on the discharge be changed to general/under honorable conditions and the reason for the discharge be changed to Medical.  The applicant requested a documentary record discharge review.  The applicant designated Dr. H_, Military Justice Clinic, as his representative on the DD Form 293.  In the acknowledgement letter to the applicant, he was informed of the death of his counsel and was advised to select another counsel by providing him a list.  Applicant did not respond to the Board.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010330.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain:  BAD CONDUCT DISCHARGE/COURT-MARTIAL, authority: MARCORSEPMAN Par. 1105.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  My discharge was inappropriate because it was based on a incident after major surgery was done on my back.  (There is a metal rod placed in my back, whole spine) limited (very) physical ability.  

2.   Also at the beginning of my career in "92" I lost a testicle, as a result of military duty.  Please refer to my medical records as a part of your review process.

3.  I think an application was previously submitted by my counsel in March, but since than he has past away in July 2000, M_ DV_ H_, President of the Military Justice  Clinic.
[NDRB did receive an incomplete application, but returned it to the applicant on 2 May 2000 to complete.]

Documentation

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

Copy of DD Form 214 (2 copies)

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		920520 - 920915	COG

Period of Service Under Review:

Date of Enlistment:  920916		Date of Discharge:  960411

Length of Service (years, months, days):

	Active:    03  06  26 (Doesn't exclude lost or confinement time)
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  58

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.14 (7)		Conduct:  2.83 (7)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, Rifle Expert Badge 

Days of Unauthorized Absence:  1

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

BAD CONDUCT DISCHARGE/COURT-MARTIAL, authority:  MARCORSEPMAN Par. 1105.

Chronological Listing of Significant Service Events:

921103:	Branch Clinic, MCRD, PISC:  19 year old black male follow-up 
	post-op sutures to scrotal area secondary to exploratory surgery.  Pt states no pain present.  Exam of sutures to mid-scrotum shows no sign of infection…healing well.
	Assessment:  Resolving incision with sutures to scrotum.
	Plan:  1 - Consulted with Mr. J_, PA, 2 - Continue with new med as prescribed, 3 - instructed pt as to cleaning and care of wound, 4 - Return for counseling 11NOV92 in A.M. 

930524:	Counseled for deficiencies in performance and conduct  [inability to distinguish good judgment by not obeying a lawful order issued by the Det Gunny MCD Ft. Lee, VA by not assuming the duties as MCD DNCO on 20 May 1993].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

931118:	NJP for violation of UCMJ, Article 121:  did, on or about 2230, 930903, at Bks 2445, Room 323, Camp Hansen, Oki, JA., steal a Minolta camera with attached Minolta lens, of a value of about $300.00, the property of LCpl D.A. M_.
Awarded forfeiture of $221.00 per month for 1 month (suspended for 6 months), restriction and extra duties for 14 days.  Not appealed.

931124:	Medical Eval:  Pt is disqualified for mess duty.  Pending Medevac to Tripler or San Diego Ortho eval at the beginning of Dec 93.

940131:	Admission to Tripler Army Medical Center, TAMC, HI:  Pt is a 20 year old male with adult scoliosis with thoracic and thoracolumbar double major curves needing surgical treatment.
Preoperative Diagnosis:  Idiopathic scoliosis of the thoracic and lumbar spine, King type V curve, with a superior left thoracic curve, and a right thoracolumbar curve.
Date of Operation:  Feb 1, 1994.
980218:  Discharged in good condition, uncomplicated hospital course.  Follow-up as directed - 30 days Ortho Adult Spine Clinic.  No running or jumping.  Physical therapy as directed.

940308:	NJP imposed and suspended on 931118 for period of 6 months vacated and punishment ordered executed.

940308:	No recommended for promotion to Corporal for April, May, and June promotion period due to a 6 month suspended sentence awarded at NJP on 931118.

940314:	Unauthorized absence since 1400, 940314.

940315:	Surrendered at 1900, 940315.  (1 day)

940321:	NJP for violation of UCMJ, Article 86:  UA from appointed place of duty to wit:  Smedley Hall, Bldg #1633 from 1400, 940314 to 1900, 940315.
	Award:  Forfeiture of $226 per month for 1 month, restriction and extra duty for 14 days.  No indication of appeal in the record.

940509:	Counseled for deficiencies in performance and conduct [inability to show up for your normal duties at the proper time and your drinking underage which causes you to be impaired to perform your duties].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

940516:	Not recommended for promotion to Cpl for the July, August, and September promotion period because of recent NJP held on 940321.

940523:	Counseled for deficiencies in performance and conduct  [constant disregard of orders concerning morning cleanup formations at 0600 daily and field day formations at 1800 on Thursday evenings].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

940628:	Special Court-Martial.
	Charge I (3 Specs):  violation of the UCMJ, Article 86.
	Specification 1: Fail to go at the time prescribed to morning cleanup muster at 0600, 940518.
	Specification 2: Fail to go at the time prescribed to morning cleanup muster at 0600, 940520.
	Specification 3: Fail to go at the time prescribed to morning cleanup muster at 0600, 940523.
	Charge II: violation of the UCMJ, Article 92.
	Specification:  Violated a lawful general reg by wrongfully possessing drug abuse paraphernalia.
	Charge III (5 Specs): violation of the UCMJ, Article 112a.
	Specification 1:  On or abt 931221, wrongfully possessing .15 grams of marijuana with the intent to distribute.
	Specification 2:  On or abt 931221, wrongfully introduce .15 grams of marijuana onto an installation used by the armed forces.
	Specification 3:  On or abt 931223, wrongfully distribute abt .15 grams of marijuana.
	Specification 4:  On or abt 931225, wrongfully introduce, via U.S. Mail, abt .15 grams of marijuana onto an installation used by the armed forces.  
	Specification 5:  On or abt 931222, wrongfully export .15 grams of marijuana from the United States.
	Charge IV: violation of the UCMJ, Article 134.
	Specification: On or abt 931221, knowingly and intentionally use a Comm Facility, the U.S. Mail to distribute .15 grams of marijuana.
	Finding:  Charge I and the 3 specifications thereunder, guilty.
Charge II and the 2 specifications thereunder, guilty.
Charge III and the 5 specifications thereunder, guilty.
Charge IV:  withdrawn.
Sentence:  Confined at hard labor for 4 months, reduced to pay grade 
E-1,  Confinement at hard labor in excess of 90 days suspended for a period of 12 months from date of trial, at which time it will be remitted w/o further action unless sooner vacated.
	CA action 941201:  Sentence approved and ordered executed.

940628:	To confinement.

940909:	Released from confinement, returned to duty.

941012:	Counseled for deficiencies in performance and conduct [illegal involvement:  specifically transfer, possession and introduction of marijuana onto a military installation].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

941205:	To confinement.

950203:	Special Court-Martial.
	Charge I:  violation of the UCMJ, Article 86.
	Specification:  On or about 2 Dec 94, w/o auth, fail to go at the time prescribed to his appointed place of duty, to wit: the 0800 muster in the First Sergeant's Office.
	Charge II:  violation of the UCMJ, Article 91 (3 Specs)
	Specification 1:  On or about 7 Nov 94, assault Sgt J_ L_, USMC, a noncommissioned officer, then known to the said applicant to be a superior noncommissioned officer who was then in the execution of his officer, by twice pushing him down upon a bed rack with his hands.
	Specification 2:  Having received a lawful order from Sgt L_, a noncommissioned officer then known to the said applicant to be a superior noncommissioned officer, to "Let me see that stuff," "Stay her," "Go back to your room," "Come back," and "Give me your I.D. card," orders which it was his duty to obey, did at Marine Corps Security Force Company, Pearl Harbor, HI, on or about 7 Nov 94, willfully disobey the same.
	Specification 3: on or about 7 Nov 94, was disrespectful in language toward Sgt L_, USMC, a noncommissioned officer, then known to the said applicant to be a superior noncommissioned officer, who was then in the execution of his office, by saying to him, "F--- you, n-----, and I am not giving my I.D. car up to no punk," "I don’t' give a f--- if you are a Sergeant," and "I'm going to kick your ass, or words to that effect.
	Charge III:  violation of UCMJ, Article 92 (4 Specs):  
Specification 1: violated a general order by wrongfully possessing drug abuse paraphernalia intended to be used for inhaling marijuana, to wit: cigarette rolling papers.
Specification 2:  violated a general order by wrongfully wearing an earring.
Specification 3:  on or about 0200, 4 Dec 94, violated a general order by wrongfully having one female guest in barracks room after curfew.
Specification 4: on or about 0234, 5 Dec 94, violated general order by wrongfully having two female guests in barracks room after curfew.
	Charge IV:  violation of UCMJ, Article 95: on or about 7 Nov 94 resist being apprehended by Sergeant J_ L_, USMC, a person authorized to apprehend the accused.
	Charge V:  violation of UCMJ, Article 112a:  on or about7 Nov 94, wrongful possess some amount of marijuana.
	Charge VI:  violation of UCMJ, Article 117.
	Specification:  on or about 7 Nov 94, wrongfully use provoking words, to wit:  "F--- you, nigger, and I am not giving my I.D. card up to no punk,"  "I don't give a f--- if you are a Sergeant" and "I'm going to kick your ass", or words to that effect, towards Sergeant J_ L_, USMC.
	Charge VII:  violation of UCMJ, Article 128: on or about 7 Nov 94, assault Sergeant J_ L_, USMC, who then was and was then known by the accused to be a noncommissioned officer of USMC by twice pushing him down upon a bed rack with his hands.
	Charge VIII:  violation of UCMJ, Article 134 (4 Specs): 
	Specification 1:  On or about 7 Nov 94, disorderly.
	Specification 2:  On or about 7 Nov 94, wrongfully communicate to Sgt J_ L_, USMC, a threat to physically injure said L_ by saying "I'm going to kick your ass," or words to that effect.
	Specification 3:  On or about 7 Nov 94, with intent to prevent its seizure, remove and dispose of some amount of marijuana, property which, as said applicant then knew, a person authorized to make searches and seizures was endeavoring to seize.
	Specification 4: On or about 7 Nov 94, wrongfully endeavor to impede an investigation in the case of said applicant, by removing and disposing of some amount of marijuana after having been ordered by Sgt J_ L_, USMC, surrender said marijuana.
	Findings:  to Charge I and specification thereunder, not guilty.  
To Charge II, specification 1 - guilty; specification 2, guilty excepting the words "let me see that stuff," "go back to your room"; to the excepted words - not guilty; to remainder of the specification - guilty; specification 3 - not guilty
To Charge III and specifications thereunder, not guilty.
To Charge IV and specification thereunder, not guilty.
To Charge V and specification thereunder, not guilty.
To Charge VI and specification thereunder, guilty.
To Charge VII and specification thereunder, not guilty.
To Charge VIII and specifications 1, 3, and 4 thereunder, not guilty; to specification 2 - guility.
	Sentence:  Confinement for period of 6 months, forfeit sum of $569.00 per month for a period of 6 months, and a bad conduct discharge.
	CA 950808:  Sentence approved and ordered executed except for the BCD.  Execution of that part of the sentence to confinement in excess of 35 days is suspended for a period of 12 months from the date of trial, at which time it will be remitted without further action unless sooner vacated.

950203:	To confinement, Sentence of SPCM.

950206:	From confinement, to duty.

950214:	To appellate leave (Modified to involuntary appellate leave by letter on 15 Aug 95).

960109:	NMCCMR:  Affirmed findings and sentence.

960411:	SSPCMO:  Article 71c, UCMJ, having been complied with, Bad Conduct discharge ordered executed.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 960411 with a bad conduct discharge which was the sentence adjudged by a properly constituted special court martial that was determined to be legal and proper, affirmed in the legal chain of review and executed (A and B).  The Board presumed regularity in the conduct of governmental affairs (C).  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (D and E).

The applicant states in his Issues, “My discharge was inappropriate because it was based on an incident after major surgery was done on my back.”  A medical diagnosis, whether proper or improper is not an issue upon which the NDRB can grant relief.  When reviewing a discharge, the NDRB does consider the extent to which a medical problem might affect an applicant’s performance and ability to conform to naval service standards of conduct and discipline.   However, the Board does not consider the circumstances surrounding the applicant’s stated condition, the diagnosis, nor the medical treatment given to the applicant to exculpate the applicant’s misconduct.  In fact, the Board sees no connection between the applicant’s misconduct and his medical condition.  The applicant’s misconduct began before his medical condition and continued after his condition was resolved.  Relief is not warranted on this basis.

Relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts.  With respect to a discharge or dismissal adjudged by a court-martial case tried under the Uniform Code of Military Justice, the action of the NDRB extends only to a change in the discharge or dismissal for purpose of clemency. (B, art IV). 
The applicant's case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency.  The NDRB found the applicant’s service record devoid of any mitigating or extenuating factors sufficient to offset the seriousness of the offenses for which the discharge was awarded.  In fact, the Board found the applicant had been afforded thorough and detailed counseling on his deficiencies, beyond that normally provided, and was offered many avenues to correct his pattern of misconduct.  Relief is therefore, denied.

The applicant is reminded that he is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge.  Representation at personal appearance hearing is highly recommended.

Pertinent Regulation/Law (at time of discharge)

A.  Paragraph 1105, DISCHARGE ADJUDGED BY SENTENCE OF COURT-MARTIAL, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 950818 until present. 

B.  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 112a, unlawful use of a controlled substance.

C.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

D.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

E.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

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 “afls14.jag.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:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023	

.