Author: CAP
Last saved by: Department of the Navy
Company: NCPB

Docket No. MD03-00571

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

ex-Pvt, USMC
Docket No. MD03-00571

Applicant’s Request

The application for discharge review was received on 20030212.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance hearing before the Board in the Washington National Capital Region.  The Applicant did not list any representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.  Subsequent to the application, Applicant chose American Legion or Veterans of Foreign Wars.  The Naval Discharge Review Board selected the American Legion as representative (first selection on the list of available representatives) for the Applicant.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040401.  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: UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MARCORSEPMAN Par. 6210.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “Clemency is warranted because it is an injustice for me to continue to suffer the adverse consequences of a bad discharge.

2.  My average conduct and efficiency ratings/behavior and proficiency marks were good [or pretty good].

3.  I received awards and decorations.

4.  I was so close to finishing my tour that it was unfair to give me a bad discharge.

5.  My record of court-martial convictions indicates only isolated or minor offenses because I was 15 min late.

6.  My record of AWOL/UA indicates only minor or isolated offenses.

7.  Personal problems impaired my ability to serve.  (mental illiness)

8.  I faced racial discrimination and that impaired my ability to serve.

9.  Medical or physical problems I had impaired my ability to serve.

10.  Psychiatric problems I had impaired my ability to serve.

11.  The punishment I got was too severe compared with today’s standards.

12.  The punishment I got at discharge was too harsh-it was much worse than most people got for the same offense.

13.  I tried to serve and wanted to, but just couldn’t or wasn’t able to at the end (mental illiness).

14.  My discharge was based on many offenses, but they were mostly only minor offenses.

15.  My command abused its authority when it decided to discharge me and decided to give me a bad discharge.

16.  I should have gotten a medical discharge because I was not medically qualified to serve.  Due too a now known fact that I have a mental illness.”

Additional issues submitted by Applicant’s counsel/representative (American Legion):

17.  “On behalf of the above referenced applicant, and in accordance with 32 C.F.R., section 724.166; SECNAVINST 5420.174C, enclosure (1), paragraph 1.16, The American Legion submits to the Naval Discharge Review Board (NDRB or Board) the following informal comments; and/or issue(s). 

This former member was discharged Under Other Than Honorable Conditions due to misconduct as authorized by MARCORSEPMAN, Par. 6210.3.

This applicant has submitted a shopping list of random issues from an old NVLSP self-guide.  He has submitted 25 pages of additional personal statements, police report and mental health treatment records documentation for consideration.  

Most of this applicant’s SRB is missing.  In particular, his discharge package and medical records.  The available documentation reflects that SNFM was awarded NJP on 981119 for VUCMJ, Art. 91;  NJP on 000129 for VUCMJ, Art. 121;  NJP on 010424 for VUCMJ, Art. 121 and NJP on 010620 for VUCMJ, Art. 134 (2 specs).  Following due process notifications, he was discharged for the misconduct on 020307.

Based this applicant’s supporting documentation indicating that his abnormal behavior began soon after his discharge plus his being diagnosed as psychotic within 6 months of separation, we aver that there is a strong probability that prodronal symptoms of his disability contributed to his misconduct.  Accordingly, we opine that an advisory review by the NCPB’s psychiatrist would be indispensable to a full and fair decision of this case.  

The American Legion’s express purpose in providing this statement, and any other submittals or opinions of record, is to aid the applicant in resolving any improprieties or inequities in the character and basis for discharge.  Moreover, we rest assured that the Naval Discharge Review Board’s final decision will reflect sound equitable principles consistent in law, regulation, policy and discretion as promulgated by title 10 U.S.C., section 1553, and set forth in 32 C.F.R., part 724; SECNAVINST 5420.174C, enclosure (1). 

This case is now respectfully submitted to the Board for deliberation and disposition.”

Documentation

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

Applicant’s DD Form 214
List of hospital and mental institutions where Applicant has received medical treatment, dated October 21, 2002 (2)
Physician discharge note, dated September 5, 2002
Social work discharge progress note, undated
Letter from Applicant’s mother, undated
Letters of guardianship, dated January 8, 2003 (2)
Battle Creek Police Department O N F report, dated November 14, 2002 (3)
Letter from Applicant’s mother, dated January 31, 2003 (2)
Letter from Board for Correction of Naval Records, dated September 4, 2002
Letter to Applicant’s mother from Naval Discharge Review Board, dated November 5, 2002
Letter to Applicant’s mother from Congress of the United States, dated November 24, 2002 (2)
Permission form to investigate my difficulties with Marine Corps, undated
Letter from a doctor from Behavioral Health Resources, dated February 17, 2003 (2)
Letter from an Outpatient Therapist, Behavioral Health Resources, dated February 5, 2003
Battle Creek Police Department complaint report, dated November 14, 2002 and June 18, 2002
Psychiatric evaluation, dated September 16, 2002
Psychiatric evaluation, dated October 2, 2002
Outpatient Clinic progress note, dated September 24, 2002
Letter to Applicant from Board for Correction of Naval Records, dated September 4, 2002

PART II - SUMMARY OF SERVICE

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

	Active:   Unknown
	Inactive: Unknown

Period of Service Under Review:

Date of Enlistment:  980512		Date of Discharge:  020307

Length of Service (years, months, days):

	Active:    03  09  26
	Inactive:  None

Age at Entry:  26			Years Contracted:  4

Education Level:  Unknown		AFQT:  38

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  NMF*			Conduct:  NMF

Military Decorations:  None

Unit/Campaign/Service Awards:  AFEM, NDSM, HSM, SSDR, Letter of Appreciation

Days of Unauthorized Absence:  None

* No Marks Found in the service record

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCTunder other than honorable conditions by reason of misconduct due to a pattern of misconduct.

Chronological Listing of Significant Service Events:

981119:	NJP for violation of UCMJ, Article 91:
Specification: Treat with disrespect in language and deportment, Cpl C_ by talking back and pushing Cpl C_ on 981116.
Awarded forfeiture of $463.00 per month for 2 months, restriction and extra duties for 45 days, reduction to Pvt.  Forfeiture suspended for 6 months.  Not appealed.

981125:	Counseled for deficiencies in performance and conduct.  [Being disrespectful towards NCO’s.  Challenging an NCO with body language, by bumping your chest into his telling him that you did not have to assume the position of attention when instructed by the NCO to do so.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

000129:	NJP for violation of UCMJ, Article 121:
Specification: Steal two H-harnesses, two cartridge belts, one desert field jacket, one field jacket liner, one medical pack, one sleeping bag, one MOLLE waist belt , six boonie covers, one poncho and one poncho liner, the property of S-4, H&S Company, Battalion Landing Team 1/4, 15^th Marine Expeditionary Unit.
Violation of UCMJ, Article 134:
Specification: Conceal two H-harnesses, two cartridge belts, one desert field jacket, one field jacket liner, one medical pack, one sleeping bag, one MOLLE waist belt, six boonie covers, one poncho and one poncho liner, the property of S-4, H&S Company, Battalion Landing Team 1/4, 15^th Marine Expeditionary Unit.
Awarded forfeiture of $479.00 per month for 2 months, restriction for 60 days, reduction to Pvt.  Not appealed.

010424:	NJP for violation of UCMJ, Article 121:
Specification: Wrongfully appropriate currency of unknown value from the tip jar, the property of the employment at the Camp Horno Subway shop on 1715, 010408.
Violation of UCMJ, Article 128:
Specification: Assault a Subway employee by slapping him in the head and hitting him with a metal chair on his hand on 010408.
Awarded forfeiture of $521.00 per month for 2 months, restriction and extra duties for 45 days, reduction to Pvt.  Appealed 010426.  Appeal denied 010530.

010620:	NJP for violation of UCMJ, Article 134 (2 specs):
Specification 1: Break restriction on 0700, 010512.
Specification 2: Break restriction on 0700, 010529.
Awarded forfeiture of $521.00 per month for 2 months, restriction and extra duties for 45 days.  Forfeiture suspended for 6 months.  Not appealed.

Applicant’s discharge package missing from service record

020307:	DD Form 214: Applicant discharged under other than honorable conditions by reason of misconduct due to a pattern of misconduct, authority:  MARCORSEPMAN Par. 6210.3.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20020307 under other than honorable conditions for misconduct due to a pattern of misconduct (A and B).  In the absence of a discharge package, the Board presumed regularity in the conduct of governmental affairs (C) and, after a thorough review of the records, supporting documents, facts, and circumstances unique to this case, found that the discharge was proper and equitable (D and E).

Issues 1-17.  The Applicant’s issues and documentation provided do not refute the presumption of regularity in this case.  A characterization of service of under other than honorable conditions is warranted when the member's conduct constitutes a significant departure from that expected of a Marine.  The Applicant’s service was marred by award of nonjudicial punishment (NJP) on at least four occasions and an adverse counseling entry on another occasion.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his disobedience of the orders and directives which regulate good order and discipline in the naval service.  The Board found that the Applicant’s age, education level, and test scores qualified him for enlistment.  While he may feel that racism, personal and medical problems were factors that contributed to his actions, the evidence of record and documentation provided does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  The documentation available for review does not establish that the Applicant’s psychiatric condition existed while on active duty.  An advisory review by a competent medical authority was not required to determine the equity and propriety of this discharge.  For the Applicant’s edification, the Navy’s Bureau of Medicine and Surgery conducts any review of cases requested by this Board.  Relief denied.

The Applicant’s discharge characterization accurately reflects his service to his country.  The discharge was proper and equitable.  Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question.  No such error or inequity is evident during the Applicant’s enlistment.  Additionally, 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 the service.  Relief not warranted.

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.  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 violation of the UCMJ, Article 91, disrespect to a NCO; Article 121, larceny; Article 128, assault; and Article 134, break restriction.

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.
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