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Docket No. MD02-00975

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

 ex-Pvt, USMC
Docket No. MD02-00975

Applicant’s Request

The application for discharge review, received 020625, requested that the characterization of service on the discharge be changed to honorable.  The Applicant requested a documentary record discharge review.  The Applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030331.  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: UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MARCORSEPMAN Par. 6210.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  To whom it may concern:  I [Applicant], Born in Avon Park F.L. 21 yrs, old.  I went to boot camp at Perris Island.  While I was in boot camp I brought up the problem about my father.  I am the only dependent for my father.  For five moths I seeked help on the issue and everyone passed the ball until I reached my first duty station.  Camp Lejune was were the rest of my time was spent in the military.  My reasons for joining the Marines was to go to school find some medical attention for my father.  I was told that I had to fill out a dependent sheet to gain custody of my father, while waiting for an answer my father took every sick, so I was send home on emergency leave.  I was told that I had only two months to seek my father some medical attention, two months past and was not enough time to help my father.  I was at a reserve station in Orlando.  From the time I got their it seemed like I was pressured and had very limited time to do everything.  I had to drive my father 3 hrs. away to the V.A. Hospital.  They knew were I was going and what I was doing at all times.  After I finished later on that evening I received a phone staying I was in U.A. status and had to report in by twelve the same night.  Ounce I got their and they saw my face they sent me back to N.C. in the middle of trying to help my father I lost money in trying to rent out a apartment so my father could have reliable shelter.  Ounce I got back I was NJPED along with three other minor incidents.  At this point in time I could not concentrate on being a marine any more, worrying about my father and his condition at the same time I was going to school I couldn't concentrate and had to withdraw from school too find out the were about of my father.  Everything that was happening around me was starting to get to stressful, my Unit sent me to have a psychiatric evaluation and I was diagnosis with a personality disorder and was unfit for military duty.  So my unit set up me a summary court and I was discharged with a pattern of misconduct, and a OTH.  The reason they agreed on giving me a OTH, was do to the reason that my unit knew that I didn't deserve a discharge that could render my life.  My military lawyer told me how to go about getting my discharge upgraded to continue the treatment the V.A. hospital, and to help me finish school too better my life.

Documentation

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

Applicant's DD Form 214
Letter to Applicant from Commanding Officer dated December 13, 2000

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		991015 - 991107	COG

Period of Service Under Review:

Date of Enlistment:  991108		Date of Discharge:  011029

Length of Service (years, months, days):

	Active:    01  11  22  (Does not exclude lost time)
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  35

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.2 (3)			Conduct:  4.1 (3)

Military Decorations:  None

Unit/Campaign/Service Awards:  MM

Days of Unauthorized Absence:  (11)010215-010225; (1)010327; (126)010620-011025

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  MARCORSEPMAN Par. 6210.3.

Chronological Listing of Significant Service Events:

000914:	Counseled for deficiencies in performance and conduct (Unauthorized absence, poor judgment, and lack of integrity; specifically, the Applicant secured from his work section early under the pretense of assuming duties as the walk-thru watch).  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

001204:	NJP for violation of UCMJ Article 86:
	Specification: Unauthorized absence from 0715 to 1530 on 001120.
	Violation of UCMJ Article 92:
	Specification: Failure to obey a lawful order at 0715 on 001120, to wit: ordered to report to work section by an NCO and failed to do so.
	Awarded forfeiture of $263.00 per month for 1 month, restriction and extra duties for 14 days.  Not appealed.

001204:	Counseled for deficiencies in performance and conduct (Recent NJP on 001204).  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued

010306:	NJP for violation of UCMJ Article 86:
	Specification: Failed to report to work from 0730 on 010215 to 2350 on 010226 (11 days/surrendered).
	Awarded forfeiture of $272.00 per month for 1 months, restriction and extra duties for 14 days.  Not appealed.

010423:	Mental Health evaluation, Naval Hospital, Camp Lejeune, NC: Diagnosis: Severe personality disorder.  Comments:  "The member is not mentally ill and is responsible for his behavior.  However, this member does manifest a long-standing disorder of character and behavior which is of such sever-ity as to interfere with his ability to function effectively in the military environment....In the examiner's opinion, the patient does not posses a severe mental disease or defect for purposes of R.C.M. 706 examinations and is considered competent."

010524:	Summary Court-Martial.
	Charge I: violation of the UCMJ Article 86.
	Specification: Unauthorized absence from 0700 on 010327 to 010328
	(1 day).
	Charge II: violation of the UCMJ Article 92:
	Specification: Failed to obey a lawful order at 0700 on 010327, to wit: paragraph 12d (2) BnO 1050.V dated 970314, by wrongfully going to Florida.
	Finding: to Charge I and II and the specifications thereunder, guilty.
	Sentence: Forfeiture of $695.00, restriction for 60 days, reduced to Pvt.
	CA action not found in service record.

010606:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

010606:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27(b), elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

010606:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.  The factual basis for this recommendation was the Applicant's Page 11 entry of 001204, nonjudicial punishment for violation of Articles 86 and 92 on 001204, nonjudicial punishment for violation of Article 86 on 010306, and a summary court martial for violation of Articles 86 and 92 on 010524.  Commanding Officer comments: "...it is my opinion that an Other Than Honorable characterization of service is warranted.  Retention of the respondent would adversely affect the morale, discipline, and military effectiveness of this organization."

010614:	SJA review determined the case sufficient in law and fact.

010618:	GCMCA (Commanding General, 2d Force Service Support Group, Camp Lejeune, NC) directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

010620:	Applicant to pre-trial confinement.

010627:	GCMCA (CG, 2d FSSG) directed the Applicant's separation be held in abeyance pending disposition of the disciplinary proceedings resulting from the Applicant's alleged violation of UCMJ Article 86, Absence without leave.

011025:	Applicant from confinement (126 days).

011105:	SJA again reviewed case and found it sufficient in law and fact.  SJA states the following:  Applicant found guilty at special court-martial of disrespect and communicating a threat, violations of UCMJ Articles 89 and 134; his sentence, imposed on 010828, included five months confinement, but no punitive discharge; with 69 days of pretrial confinement credit, the Applicant's sentence is now complete.

011127:	GCMCA (CG, 2d FSSG) directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.  Commanding General comments: "My predecessor sub-sequently held that discharge in abeyance after learning that [Applicant] was pending trial by special court-marital.  [Applicant]'s trial is now over and the administrative discharge will be executed."

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 011029 under other than honorable conditions for misconduct due to a pattern of misconduct (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).

Issue 1:  The Applicant contends that family problems at the time of his enlistment contributed to his misconduct and that these problems should be taken into account in assessing an upgrade to his discharge.  Personal problems that a Marine faces while on active duty, however, do not mitigate any misconduct undertaken by that service member.  The records that the Board reviewed showed that the Applicant repeatedly violated the UCMJ and that he was accountable for his actions.  This evidence of misconduct warrants a characterization of service normally less than honorable.  The Applicant’s service is equitably characterized as under other than honorable conditions due to the Applicant's derogatory Page 11 entry, two nonjudicial punishments, one special courts-martial, one summary courts-martial, and two recommendations for discharge from his immediate chain-of-command.  Relief on this basis is denied.

The Applicant further contends that his diagnosis of a personality disorder and sub-sequent determination of being unfit for further military duty should also be considered by the Board in upgrading his discharge characterization.  Marine Corps Directives specifically state that a Marine will be separated from military service if warranted on the basis of unsatisfactory performance or misconduct regardless of the existence of a personality disorder.  While the Board recognizes the Applicant was diagnosed by medical authority to have a personality disorder, the records the Board reviewed showed overwhelming evidence of misconduct.  Relief on this basis is denied.

The following is provided for the edification of the Applicant.  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 in civilian life subsequent to leaving the service.  The NDRB is authorized, however, to consider outstanding post-service factors in the recharacterization of a discharge to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  Verifiable proof of post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge.  Evidence of continuing educational pursuits, an employment record, documentation of community service, and certification of non-involvement with civil authorities are examples of verifiable documents that may be provided to receive consideration for relief based on post-service conduct.  At this time, the Applicant has not provided such documentation for the Board to consider.

The Applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received at the NDRB within 15 years from the date of his discharge.  The Applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  Paragraph 6210, MISCONDUCT, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 31 Jan 97 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 violations of the following articles of the UCMJ: Article 86, Absence without leave (more than 30 days); Article 89, Disrespect toward a superior commissioned officer: Article 92, Failure to obey order or regulation; and/or Article 134, Communicating a threat.

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

The remaining portion of this document is divided into 4 Parts: Part I - Applicant’s Issues and Documentation, Part II - Summary of Service, Part III – Rationale for Decision and Pertinent Regulation/Law, Part IV - Information for the Applicant.
INDEX:  A6750/A9309/A9217/9223/9225