Author: CAP
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Docket No. MD05-00914

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

FOR OFFICIAL USE ONLY

 ex-PFC, USMC
Docket No. MD05-00914

Applicant’s Request

The application for discharge review was received on 20050502.  The Applicant requests the Discharge 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 20051020.  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) by reason of misconduct due to a pattern of misconduct.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“I was a little under 3 months from the end of active service when they discharged me on a pattern of conduct based upon 2 NJP’s and a number of page 11 entries.  One of my NJP’s was due to back pains that I had developed while in the Marine Corps, and as my condition was over 6 months old, the doctors at sick call would not see me or excuse me from my absences from remedial PT.  I still have this problem, and have been seen at the VA for it.”

Documentation

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

Applicant’s DD Form 214  (Member 4)
Ltr from Department of Employment Security, dated June 9, 2004
UI Claimant Wage Information Sheet, dated May 30, 2004

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	20000403 – 20001002		COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20001003		Date of Discharge:  20040521

Length of Service (years, months, days):

Active:    03  07  19  
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  18 

Years Contracted:  4 

Education Level:  12				AFQT:  59

Highest Rank:  LCpl				MOS:  4067

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.8 (11)				Conduct:  3.6 (11)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  National Defense Service Medal, Meritorious Unit Commendation, Letter of Appreciation (3rd awd)

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority:  MARCORSEPMAN Par. 6210.3.

Chronological Listing of Significant Service Events:

010718:	Counseling:  Advised of deficiencies in performance and conduct (Unauthorized absence from your appointed place of duty on the following dates 010604, 010605, 010613, 010627, 010709, 010710 and again 010716, this is a direct violation of Article 86 of the UCMJ), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

011126:	Acknowledged understanding of eligibility but not recommended for promotion to LCpl for the month of December, 2001, 4^th quarter because of pending NJP and Pg 11 dated 010718.  Applicant chose not to make a statement.

011130:	Memorandum from the Mental Health Department: “SM was command directed for evaluation on 16 Nov 01 and subsequently interviewed by Mrs. J_ A__, LCSW, on 27 Nov 01.  The S/M had previously been evaluated on a walk-in basis to rule out suicidal ideation on 27 Aug 01 and again was seen on walk-in basis on 5 Sept at request of the command to determine if “fit for confinement.”
	The S/M was referred formal evaluation to determine competency to continue serving in the USMC due to continual problems with the S/M not adapting to the norms of a military environment.  S/M entered the military on waiver for longstanding problems with Attention Deficit Disorder and a Learning Disability.  Since arriving at Quantico, the S/M has been counseled on a near daily basis for inadequate hygiene and disregard of military appearance and very basic issues of taking responsibility to get to work on time.  Most recently he had financial problems and bounced a check, with a very inadequate excuse for such.  S/M continues to be in an investigative phase with NCIS for allegedly accessing child pornography on his personal computer in the barracks.  (S/M denies child porn-but does acknowledge part of his problems in getting to work was due to his staying up all night on AOL.)  The S/M denies suicidal ideation, but alludes to questionable homicidal ideation, with out specific plan or target mentioned.
	Early history:  Indicative of a discordant and chaotic home life that included abuse and neglect.  Psychiatric evaluation and treatment including some experimental medications began as early as second grade for the S/M’s attention deficit, learning disability and conduct problems.  Reading the psychiatric evaluation of this patient at age thirteen indicates that behaviors that were problematic then have not really changed in the ensuing six years.
	Diagnostic impressions are as follows:
	AXIS I:  History of Attention deficit Disorder w: hyperactivity (314.01 and learning Disorder Not other wise specified (315.9)
	AXIS II:  Personality Disorder not otherwise specified with antisocial traits.
	AXIS III:  No medical condition
	AXIS IV:  Legal, Occupational, Economic and Primary Support Group Problems
	AXIS V: GAF 45
	(Both AXIS I and II existed prior to entry on Active Duty)
	Recommendation:  The S/M is not suicidal or homicidal, although he has endorsed fleeting thoughts of “visions of playing in blood” in the recent past.  He is not psychotic and is responsible for his actions.  However, the S/M has a fixed personality disorder and residual problems from ADHD and LD that is negatively impacting his ability to conform to the demands of the military and which renders him unsuitable for continued service.  If retained on active duty, the S/M poses a strong potential for further unpredictable, impulsive behavior and will continue to not adapt.  This diagnosis is not of the nature that would require a medical board, or benefit from conventional forms of psychiatric treatment available in the military.”

020111:	Counseling:  Advised of deficiencies in performance and conduct (On 30 November 2001 your were evaluated by the department at the Naval Medical Clinic in Quantico, VA.  The diagnosis of this evaluation was that you have a fixed personality disorder and that you suffer from residual problems from ADHD therefore making you unsuitable for further military service.  The mental health professional also indicated that you are not psychotic and that you are responsible for your actions.  The reason for this evaluation was due to your continued problems with not being able to adapt to the norms of a military environment.  You have been frequently counseled on your lack of hygiene and disregard of proper military appearance, you have also continued to have problems with showing up to work on time.  In regards to your first deficiency, your disregard to proper hygiene is not only unpleasant to others but also unhealthy and will not be tolerated), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

020111:	Acknowledged understanding of eligibility but not recommended for promotion to LCpl for the months of January and February 2001, 1st quarter because of pending NCIS Investigation.  Applicant chose not to make a statement.

020318:	Acknowledged understanding of eligibility but not recommended for promotion to LCpl for the month of March 2002, 1st quarter because of pending investigation.  

020522:	Acknowledged understanding of eligibility but not recommended for promotion to LCpl for the months of April, May and June 2002, 1st quarter because of not being ready to assume the responsibilities of the next grade.  Applicant chose not to make a statement.

020710:	Acknowledged understanding of eligibility but not recommended for promotion to LCpl for the month of July year 02 Prom 3rd Quarter because of not being ready to assume the responsibilities of the next grade.  Applicant chose not to make a statement

030430:	Counseling:  Advised of deficiencies in performance and conduct (Violation of Article 92 of the UCMJ; failure to obey an order or regulation, to wit, on or about March 18, 2003, SNM’s BEQ room was once again found in a unsanitary and unsatisfactory manner.  Lance Corporal F_ has been counseled on numerous occasions about failing to keep his room in a good, and sanitary state of police at all times.  SNM has not shown any sign of improvement and/or willingness to obey the orders and regulations outlined in previous counselings.  SNM continues to fail field day inspections without any consequences or thought of being held accountable for his actions), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

030523:	NJP for violation of UCMJ, Article 92:
Specification:  Did, on or about 030419, violate MCO 5110.IC, by driving on a suspended license.
Violation of UCMJ, Article 92:
Specification:  Did, on or about 030419, fail to obey an order issued by GySgt R_, by operating a vehicle without proper insurance coverage.
Violation of UCMJ, Article 107:
Specification:  Did, on or about 030421, make a false official statement to SSgt R_ by saying that he has paid off his ticket.
Award:  Reduction to E-2, forfeiture of $645.00 pay per month for 2 months ($645.00 pay per month suspended for 6 months), restriction and extra duty for 45 days.  Not appealed.

030523:	Counseling:  Advised of deficiencies in performance and conduct (Violation of Articles 92 on two separate occasions and violation of Article 107, of the UCMJ; violation of MCO 5110.1C by driving on a suspended license, failed to obey a direct order issued by Gunnery Sergeant R_, and made a false official statement to Staff Sergeant R_), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

030721:	Counseling:  Advised of deficiencies in performance and conduct (Failure to maintain height and weight standards as evidenced by your weigh-in on 16 May 2003, where your height was recorded at 68 inches, your weight at 192 pounds, and body fat of 23%.  Appropriate medical tests have determined that your deficiency is not due to an underlying cause or associated disease), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

031212:	Counseling:  Advised of deficiencies in performance and conduct (Unsatisfactory performance while assigned to the Marine Corps BCP.  Due to insufficient effort, you have not met your weight /body fat reduction goals for the month of October), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

031218:	NJP for violation of UCMJ, Article 86:  Unauthorized absence from his appointed place of duty, to wit: BCP at Barber Gym, between 0600 and 0700, 031216.
	Violation of UCMJ, Article 86: Unauthorized absence from his appointed place of duty, between 0730 and 0830, 031216.
Violation of UCMJ, Article 92:  Did, on or about 031216, fail to obey an order, given by his CO, to wit: to go to his assigned workout at Barber Gym.
	Award:  Forfeiture of $645.00 pay per month for 1 month, restriction and extra duty for 45 days.  Not appealed.

040107:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.  The least favorable discharge possible is under other than conditions.  The factual basis for this recommendation is two non-judicial punishments and seven 6105 entries for repeated incidents of unauthorized absence, lying and failure to obey orders and regulations.  

040108:	Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.

040129	Commanding Officer, Tenant Activities Company, recommended to Commander, Marine Corps Base, via, Commanding Officer, Headquarters and Service Battalion, that the Applicant be discharged under other than honorable conditions by reason of misconduct due to pattern of misconduct.  The factual basis for this recommendation was the two non-judicial punishments and seven 6105 entries, within one enlistment.  PFC F_ (Applicant) has proven a pattern of misconduct through his repeated unauthorized absences, disregard for military appearance, inadequate hygiene and sanitation practices, disregard for regulations as well as civil laws, failure to maintain Marine Corps Body Composition Standards, disobedience to orders, lack of integrity, judgment, maturity, and discipline.  

040130:	Commanding Officer, Headquarters and Service Battalion, recommended to Commander, Marine Corps Base, Quantico, VA, that the Applicant be discharged under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

040203:	Medical evaluation by Naval Medical Clinic Quantico Mental Health Department.
	AXIS I:  	ADHD
Combined Type Anxiety diagnosis NOS
	AXIS II:  	Deferred
	AXIS III: 	New HTN, LBP
	Current GAF: 65  Highest GAF in last year:  65
	Plan:  Psychiatric medication:  Adderall XR 10mg PO daily; discussed adding an SSRI next visit to address anxiety SX.
	Recommendation:  Fit for full duty

040312:	An Administrative Discharge Board, based upon a preponderance of the evidence and by majority vote, found that the Applicant had committed misconduct due to pattern of misconduct, that such misconduct warranted separation, and recommended discharge under other than honorable conditions.

040511:	Commander, Marine Corps Base, Quantico, VA, informed the Commandant of the Marine Corps, that the Applicant will be discharged with a general (under honorable conditions) characterization by reason of misconduct due to a pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20040521 by reason of misconduct due to a pattern of misconduct (A and B) with a service characterization of general (under honorable conditions).  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 (C and D).  

When Marine’s service 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 record contains six retention warnings and five counselings due to the Applicant not being recommended for promotion.  The Applicant stood two nonjudicial punishment proceedings for violations of Articles 86, 92 and 107 of the UCMJ.  Violations of Articles 92 and 107 are considered serious offenses.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the Marine Corps and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

The Applicant contends his discharge was inequitable because the Applicant was “under 3 months” from the end of his contract.  A Marine is subject to the UCMJ throughout his enlistment contract.  The Applicant received six retention warnings indicating that he could be subject to administrative separation for any further infraction of the UCMJ.  The Applicant’s last retention warning was on 20031212.  On 20031218, the Applicant’s violations of the UCMJ committed on 20031216 were adjudicated at nonjudicial punishment.  The Applicant’s issue is without merit.  Relief on this basis is not warranted.

The Applicant contends that his last NJP was the result of “back pains.”  The Applicant further implies that he was denied proper medical care.   There is no evidence in the record, nor has the Applicant provided any documentation, to support the contention that he was improperly or inadequately treated for any medical problems.  Regarding the Applicant’s contention that a medical problem was the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service.  The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

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.  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 P1900.16F), effective 01 Sep 2001 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 92, failure to obey an order/regulation and Article 107, false official statement.

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

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

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