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Docket No. MD06-00349

DEPARTMENT OF THE NAVY
                     DISCHARGE REVIEW
                   DECISIONAL DOCUMENT

FOR OFFICIAL USE ONLY

ex-PFC, USMC
Docket No. MD06-00349

Applicant’s Request

The application for discharge review was received on 20051227.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable or general (under honorable conditions).  The Applicant requests a personal appearance hearing before the Board in the Washington, D.C. Metropolitan area.  The Applicant did not designate a representative on the DD Form 293.  Subsequent to his petition, the Applicant acquired the American Legion as his representative.

Decision

A personal appearance discharge review was conducted in Washington, D.C. Metropolitan area on 20070404.  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 by reason of misconduct due to a pattern of misconduct.

The NDRB did note administrative errors on the original DD Form 214.  Block 28, Narrative Reason for Separation, should read:  “Misconduct - Pattern of misconduct (administrative discharge board required but waived),” and Block 12c, Net Active Service This Period, should read, “02 04 18.”  The Commandant, Headquarters USMC, Quantico, VA, will be notified, recommending the DD Form 214 be corrected or reissued, as appropriate.

PART I - ISSUES AND DOCUMENTATION

Issues, as stated

1. Equity:  “The former member opines that his Under Other Than Honorable Conditions discharge is inequitable because there were extenuating factors that contributed to his misconduct.”

2.  Equity:  “This former member requests that the Board consider provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application.”

Documentation

In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:

Applicant’s DD Form 214 (Service 7)
Letter from the Applicant, dated January 18, 2002
Certificate of Achievement from Trenton Treatment Center, dated April 24, 2002
Achievement Award for completion of the Construction Trades, dated July 22, 2002
Certificate of Completion from New Jersey Department of Labor, dated June 27, 2002

Other

During the board, the Applicant provided one character witness, H_ A_, who testified regarding the Applicant’s post service conduct and was available to the Board members for questions.  

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	19870804 - 19880627	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19880628		Date of Discharge:  19901115

Length of Service (years, months, days):

Active:    02  04  18
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  19

Years Contracted:  6

Education Level:  12				AFQT:  55

Highest Rank:  PFC				MOS:  2512

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.3 (5)				Conduct:  3.1 (5)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  Rifle Sharpshooter Badge

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct - Pattern of misconduct (administrative discharge board required but waived), authority:  MARCORSEPMAN Par. 6210.3.

Chronological Listing of Significant Service Events:

881116:	NJP for violation of UCMJ, Article 92: Derelict in the performance of his duties by not doing the typing homework that was assigned to him on 881113.
	Award:  Forfeiture of $175.00 per month for 1 month, restriction and extra duty for 14 days.  Not appealed.

881128:	Counseling:  Advised of deficiencies in performance and conduct (Frequent involvement with military authorities.), sources of assistance provided, disciplinary and discharge warning issued.

881130:	NJP for violation of UCMJ, Article 90: Did, on or about 2245, 881126, knowingly disobey a lawful order issued by Commanding Officer, to wit: assignment to restriction, by leaving the barracks in civilian attire.
	Award:  Forfeiture of $376.00 per month for 2 months, restriction and extra duty for 30 days.  Not appealed.

890523:	Counseling:  Advised of deficiencies in performance and conduct (Lacking to maintain clothing allowances and 782 gear.  Not understanding General/Special orders towards duty as Security Watch.), necessary corrective actions explained, sources of assistance provided, disciplinary warning issued.

890911:	Counseling:  Advised of deficiencies in performance and conduct (Failure to follow orders being UA from morning cleanup.  Also advised of overall poor performance and lack of bearing and less than acceptable personal appearance.), necessary corrective actions explained, sources of assistance provided, disciplinary warning issued.

891107:	Administrative Remarks, Page 11.  Applicant advised of initiation of administrative separation.

891108:	NJP for violation of UCMJ, Article 86 (2 specs):
	Specification 1: UA from appointed place of duty on 0600, 891016.
	Specification 2: UA/AWOL from 1800-2000 on 891031 and from 0400-0700 on 891101.
	Award:  Forfeiture of $391.00 per month for 1 month, restriction and extra duty for 45 days.  Not appealed.

900202:	Counseling:  Advised of deficiencies in performance and conduct (Financial irresponsibility. Having been given specific instructions to liquidate a debt with a local merchant you failed to do so.  This is not only irresponsible but a blatant disregard for military authority by failing to comply with a direct order.  Your conduct in this matter has been unsatisfactory.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

900418:	Medical Consultation Sheet.  This service member was referred by the OIC who was concerned about his behavior in recent months.  The service member has been noted by his OIC to have missed fire watch, been late for assigned tasks, and has run into financial difficulties.  The service member himself relates that he has become dissatisfied with the Marine Corps when he was not provided with schooling that he desired.  He enlisted in the Marine Corps for schooling opportunities and was initially in an aviation billet.  However because of being unable to keep up with certain technical functions he was dropped from the MOS and placed in his current one.  He has not received any sort of schooling since that time and he has become mildly disgruntled.  To deal with this disgruntlement he began to do deliberate acts of procrastination.  For example he showed up late to watches as well as formations.  A concurrent difficulty was the financial problem in which he was unable to make payments on his car.  To meet his financial obligations as well as to find personal enjoyment in the service, the service member took a job as a bouncer and DJ at the local club.  This only contributed to his difficulties as a Marine and it was in recent days that the service member’s OIC disallowed his working off base.  The service member now presents with the desire to continue in the Marine Corps but feeling that he is not understood nor cared about.  He has no history of substance abuse.  He has no past history of psychiatric illness.  He has had no thoughts of self harm or harm to others.  He has had no pervasive neurovegetative symptoms of depression.  
	DX  AXIS  I:	No Diagnosis or Condition
	        AXIS II:  No Diagnosis or Condition
	        AXIS III: No Diagnosis or Condition
                                AXIS IV: Current psychosocial stressors include routine military service.  The severity is considered mild.
	        AXIS V:  Current GAF is approximately 70.  The highest GAF for this service member in the past year in approximately 75.

900425:	Division Psychiatry, 2D MAR DIV FMF Camp Lejeune, NC.  SVM (Applicant) seen today.  History of faltering work performance coupled with financial difficulties.  SVM somewhat disgruntled with USMC failure to provide schooling but has no evidence of depression or psychotic illness.  MSE: alert and fully oriented…DX No mental illness.  Occupational problem.  Plan: F/U 1 week.  Suggest svm be provided with schooling to assist with improving his attitude.

900712:	NJP for violation of UCMJ, Article 86: Being a part of Regt Guard, 6^th Mar, 2dMarDiv, 0330, 900216, went from guard with intent to abandon the same.
Violation of UCMJ, Article 92 (2 specs):
Specification 1: Violated BO P5560.2J by driving while on state/base revocation on 900715.
Specification 2: Violated BO P5560.2J by driving on state/base revocation on 0220, 900618.
Violation of UCMJ, Article 134: While posted as a sentinel, wrongfully fell asleep at his post at 2325, 900611.
	Award:  Forfeiture of $189.00 per month for 1 month, restriction and extra duty for 14 days.  Not appealed.

900712:	Counseling:  Advised of deficiencies in performance and conduct (Involvement with military authorities; specifically driving while on revocation and failure to appear on assigned traffic court dates.  Due to repeated violations of the above specifications I am hereby notified that my revocation did in fact commence 890701 and will not expire until 960124.  I am hereby notified that due to my current status that I will not operate any motor vehicle aboard any military installation or upon any public thoroughfare.), necessary corrective actions explained.

900717:	Counseling:  Advised of deficiencies in performance and conduct (Failure to abide by the rules and regulations of the Marine Corps and disregard for NCO’s appointed over you.  A pattern of misconduct and inability to carry out orders.), necessary corrective actions explained, sources of assistance provided, discharge warning issued.

900831:	Applicant notified of intended recommendation for discharge as under other than honorable conditions by reason of misconduct due to a pattern of misconduct.  Applicant informed the least favorable character of service possible was as under other than honorable conditions.

900831:	Commanding Officer, 6^th Marines, 2d Marine Division, Fleet Marine Force, Camp Lejeune, recommended Applicant’s discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.  The factual basis for this recommendation was respondent’s nonjudicial punishment of 881116, 881130, 891108, 900712, and his adverse page 11 entries of 881128, 890523, 890911, 900202, 900712 and 900717. 

900912:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

901005:	SJA review determined the case sufficient in law and fact.

901105:	GCMCA, Commanding General, 2d Marine Division, Fleet Marine Force, Camp Lejeune, directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

030331:	NDRB documentary record review Docket Number MD02-00986 conducted.  Determination: discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19901115 by reason of misconduct due to a pattern of misconduct (A and B) with a service characterization of under other than 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).  The Board presumed regularity in the conduct of governmental affairs (E).

The Applicant requests upgrade of his characterization of service.  When the service of a member of the U.S. Marine Corps has been honest and faithful, it is appropriate to characterize that service as honorable.  An under other than honorable conditions 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 was marred by three retention warnings and four nonjudicial punishment proceedings for violations of UCMJ Articles 86, 90, 92, and 134.  Violations of UCMJ Articles 90, 92, and 134 are considered serious offenses for which a punitive discharge is authorized at court martial.  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 U.S. Marine Corps and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

The Applicant requested an upgrade based on post service conduct.  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.  The NDRB is authorized 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.  After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that the discharge was appropriate and that the evidence of post-service conduct was found not sufficient to mitigate the conduct that precipitated the discharge.  Relief denied.

The Applicant contended that his problems in the Marine Corps can be attributed to his "depression."  While he may feel that his depression was the underlying cause of his misconduct, the record clearly reflects his willful misconduct was the reason for his discharge.  While he was in the Marine Corps he was referred by his OIC for psychiatric evaluation of depression.  Mental health was ruled out as a factor in his conduct.  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.

Although not mentioned in his issues, the Applicant and his witness mentioned that he would like an upgrade to obtain medical benefits.  The Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board.  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.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.  

The Applicant has exhausted his opportunities for review by the NDRB.  The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of Naval service, if he desires further review of his case.

Pertinent Regulation/Law (at time of discharge)

A.  Paragraph 6210, Misconduct, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16D), effective 27 Jun 89 until 17 Aug 95.

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 UCMJ, Article 90 (disobey a lawful order), Article 92 (Violation of an other lawful order), Article 134 (Sleeping while posted as a Sentinel).  

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.

E.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs.  

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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction.  You should read Enclosure (5) of the Instruction 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 Instruction 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