Author: CAP
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Docket No. MD03-00738

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

 ex-PVT, USMC
Docket No. MD03-00738

Applicant’s Request

The application for discharge review was received on 20030313.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions.  The Applicant requests a documentary record discharge review.  The Applicant listed the Veterans of Foreign Wars as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040224.  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. 6210.6.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “While on active duty in the United States Marine Corps I developed an alcohol dependency problem.  In addition, I developed a problem with depression, which had to be treated with the medication Zoloft.  As a result of my depression I began behaving irrationally.  One manifestation of my medical problem was a short temper.  When antagonized I responded by fighting.  On one occasion I fought another Private First Class and on another occasion, when I was challenged to a fist fight by Staff Sergeant M_ I responded by making inappropriate and disrespectful comments instead of walking away.  I realize that my behavior was unacceptable but request that the clinical depression for which I was being treated while on active duty be taken into full consideration in reviewing this request for a discharge upgrade.  When the Zoloft which was prescribed began to take effect I was able to control my behavior and was even assigned a position of responsibility as squad leader and guide for my platoon.  If I had not been suffering from depression or if my depression had been treated prior to the incidents, which resulted in my discharge I am confident that I would still be in the Marine Corps.  Although I requested that my medical condition be raised as an issue during my court martial my request was denied.  I was told that regardless of my medical condition my behavior was unacceptable.  I believe that given the serious nature of clinical depression that this response was short sighted and unreasonable.  

The other than honorable condition discharge I received prevents me from receiving veterans administration help with the medication I need to deal with the ongoing depression from which I suffer.  Please consider this as a good faith request for an upgrade to continue to receive medical help with this horrible medical condition which developed while I was on active duty.”

Additional issues submitted by Applicant’s counsel/representative (VETERANS OF FOREIGN WARS):

2.  “We concur with the Applicant’s contention that his discharge be upgraded.  We refer this case to the Board for their careful and compassionate consideration and request the Applicant’s discharge be reviewed for upgrading his discharge to General Discharge.”

Documentation

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

Charge Sheet
Copy of DD Form 214
Medical Data (2 pages)

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None
	Inactive: USMCR(J)		010613 - 010828	COG

Period of Service Under Review:

Date of Enlistment:  010829		Date of Discharge:  021122

Length of Service (years, months, days):

	Active:    01  02  24
	Inactive:  None

Age at Entry:  20			Years Contracted:  4

Education Level:  12			AFQT:  62

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.2 (1)			Conduct:  4.2 (1)

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  43

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  MARCORSEPMAN Par. 6210.6.

Chronological Listing of Significant Service Events:

020325:	SARD diagnosed Applicant to be alcohol dependent.
 
020419:	Applicant completed intensive outpatient treatment for alcohol dependence.

020508:	NJP for violation of UCMJ, Article 86: UA (AWOL) from BMP, STC, SuptBn, RTR, MCRD, San Diego, CA from 0730 020421 through 1354 020504 (14 days).
	Award:  Forfeiture of $289.00 pay per month for 1 month, restriction and extra duty for 14 days.  No indication of appeal in the record.

020520:	Counseled for deficiencies in performance and conduct.  [Alleged use of a controlled substance.  You admitted use of a controlled substance while in voluntary resident treatment for alcohol and in a UA status.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  

020523:	SACC determined that Applicant is an alcohol treatment failure due to continued alcohol use.  SNM also admitted to use of marijuana, cocaine, ecstasy, and methamphetamine.

020926:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 128: (2 Specifications), Spec 1: Assault an NCO on 020528; Spec 2: Unlawfully punched another Marine on 020622.  Charge II: violation of the UCMJ, Article 86: (2 Specifications), Spec 1: UA from 020424-020504 (11 days); Spec 2: UA from 020718-020816 (29 days).  Charge III: violation of the UCMJ, Article 91: Disrespectful language to an NCO on 020528.  Charge IV: violation of the UCMJ, Article 134: (2 Specs), Spec 1: Breaking restriction on 020718; Spec 2: Wrongfully communicated a threat to an NCO on 020528.
	Finding:  to Charge I and specifications 1 and 2 thereunder, withdrawn.  To Charge II and specifications 1 and 2 thereunder, guilty.  To Charge III and specifications 1 and 2 thereunder, guilty.  To Charge IV and specification 1 thereunder, not guilty, to specification 2 under Charge IV, guilty.
	Sentence:  Forfeiture of $600.00, reduced to E-1.
	CA action 020926: The finding of Guilty of Specification I, Charge II is disapproved, Specification I, Charge II is dismissed.  The remaining findings and sentence approved. The sentence will be executed, but the execution of that part of the sentence extending to confinement is suspended for 6 months, at which time unless the suspension is sooner vacated, the suspended part of the sentence will be remitted without further action.  The accused is entitled to 7 days credit for time spent in pre-trial confinement.

021001:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

021002:	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

021011:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.  The factual basis for this recommendation was your multiple violations of the UCMJ.  On 020421 you went absent without leave for thirteen days.  You received Company NJP on 020508.  On 020508 you used disrespectful language toward your Platoon Commander, Staff Sergeant E.V. M_.  On 20 June you supplied alcohol to underage Marines and became involved in a fight.  While pending legal action, you violated Battalion Commander’s pre-trial restriction and went absent without leave for 29 days.  On 020916, you pleaded guilty and were found guilty of violating Article 86, 91, and 134 at a Summary Court-Martial.  Your repeated misconduct has demonstrated a disregard for appropriate standards of military conduct and has been prejudicial to good order and discipline.

021028:	SJA review determined the case sufficient in law and fact.

021108:	GCMCA [Commanding General, MCRD/WRR San Diego] directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20021122 under other than honorable conditions for misconduct due to the commission of a serious offense (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).

Issues 1 and 2.  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 one occasion, one summary court-martial and an adverse counseling entry on another occasion.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, falls short of that required for an honorable or under honorable characterization of service.  While he may feel that his alcohol dependence and depression were factors that contributed to his actions, the record clearly reflects his disregard for the requirements of military discipline and demonstrated that he was unfit for further service.  The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

The Veterans Administration 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.

The Applicant’s discharge characterization accurately reflects his service to his country.  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, to enhance employment opportunities, or for 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 January 1997 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 86, unauthorized absence; Article 91, disrespect to a NCO; and Article 134, communicate 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.
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