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

FOR OFFICIAL USE ONLY

ex-Pvt, USMC
Docket No. MD06-00352

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.  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 20061102.  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 as a bad conduct discharge by reason of court-marital.

 

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“My discharge was based on incidents that were uncharacterized for my behavior because I had 3 years and 6 months of good conduct and behavior.  I had sessions with psychiatrist before and after the incidents occurred.  After my discharge, I have been diagnosed with schizophrenia and I am receiving treatment through mental health services.  Therefore, I am asking consideration for an upgrade in status.”

Documentation

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

Applicant’s DD Form 214
Applicant’s psychiatric evaluation from Boley Centers, Inc., dtd May 2, 2005 (3 pages)
Character Reference ltr from K_ S_, Applicant’s mother, dtd September 8, 2005, unsigned
Record of Applicant’s hospitalizations and record storage

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	19970219 - 19970316	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19970317		Date of Discharge:  20020722

Length of Service (years, months, days):

Active:    05  04  06  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  74 days

Age at Entry:  18

Years Contracted:  4

Education Level:  12				AFQT:  63

Highest Rank:  LCpl				MOS:  0121

Final Enlisted Performance Evaluation Averages (number of marks):

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

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  Rifle Marksman Badge, Meritorious Commendation, Navy Unit Commendation

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

BAD CONDUCT DISCHARGE/COURT-MARTIAL, authority:  MARCORSEPMAN Par. 1105.

Chronological Listing of Significant Service Events:

970217:	Applicant briefed on the Marine Corps Policy Concerning Illegal Use of Drugs.

970219:	Enlistment waivers requested for joyriding, speeding, breaking and entering (attempted theft, damaging a vehicle, tampering with a vehicle, theft (reduced to misdemeanor theft) and theft.

980112:	Counseling:  Advised of deficiencies in performance and conduct (Frequent violation of Article 86, UCMJ.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

980319:	Counseling:  Advised of deficiencies in performance and conduct (Frequent violation of Article 86, UCMJ.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

980408:	NJP for violation of UCMJ, Article 86: UA(AWOL) from 0731, 980326 to 0742, 980326.
	Award:  Corr cust unit for 30 days.  Not appealed.

980725:	Counseling:  Advised of deficiencies in performance and conduct (Violation of Article 86, unauthorized absence.  Failed to report to work at 0800 on 980725 as directed by SNCOIC.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

980801:	Acknowledged understanding of eligibility but not recommended for promotion to LCpl for the months of August and September because of recent page elevens and an NJP.  Applicant chose not to make a statement.

990423:	Counseling:  Advised of deficiencies in performance and conduct (Frequent violation of Article 86, UCMJ.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

990426:	Acknowledged understanding of eligibility but not recommended for promotion to Cpl for the month of May because of a recent page eleven.  Applicant chose not to make a statement.

991019:	NJP for violation of UCMJ, Article 86 x 3: UA from 0700 to 0845 on 990729, UA at 0610 from morning PT on 990806 and 990809, UA from duty from 0730 to 1330 on 991004.
	Award:  Restriction and extra duty for 30 days, reduction to E-2.  Not appealed.

000228:	Applicant to confinement.  [Extracted from DD214]

000309:	Charges preferred for violations of the Uniform Code of Military Justice (UCMJ).
Article 86:
	In that Private G_ R. S_(Applicant), Jr., U.S. Marine Corps, on active duty, Marine Attack Training Squadron 203, Marine Aircraft Group 14, 2d Marine Aircraft Wing, U.S. Marine Forces, Atlantic, did on or about 000228, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: 1630, work section, Marine Attack Training Squadron 203, Marine Aircraft Group 14, 2d Marine Aircraft Wing, U.S. Marine Forces, Atlantic.
	Article 89:
	Specification: In that Private G_ R. S_, Jr., U.S. Marine Corps, on active duty, Marine Attack Training Squadron 203, Marine Aircraft Group 14, 2d Marine Aircraft Wing, U.S. Marine Forces, Atlantic, did on board Marine Corps Air Station. Cherry Point, North Carolina, on or about 000228, behave himself with disrespect toward Lieutenant Colonel K. C_, his superior commissioned officer, then known by the said Private S_ to be his superior commissioned officer, by saying ‘F--- this, I’m out of here!” and then storming out of Lieutenant Colonel C_’s office, and failing to stop when ordered to do so.
	Article 91:
	Specification: In that Private G_ R. S_, Jr., U.S. Marine Corps, on active duty, Marine Attack Training Squadron 203, Marine Aircraft Group 14, 2d Marine Aircraft Wing, U.S. Marine Forces, Atlantic, on board Marine Corps Air Station, Cherry Point, North Carolina, on or about 000228, was disrespectful in language and deportment toward Sergeant J_ H_, U.S. Marine Corps, a noncommissioned officer, then known by the said Private S_ to be a noncommissioned officer, who was then in the execution of his office, by saying to him, “If I go back to the barracks, I’m not returning to work,” or words to that effect.
	Article 112a:
	Specification: In that Private G_ R. S_, Jr., U.S. Marine Corps, on active duty, Marine Attack Training Squadron 203, Marine Aircraft Group 14, 2d Marine Aircraft Wing, U.S. Marine Forces, Atlantic, did, between on or about 000123 and 000224, at an unknown location, wrongfully use marijuana.

000315:	Charges referred to special court-martial.

000407:	Inquiry into the mental responsibility and capacity of Applicant at Psychology Department, Naval Hospital, MCAS Cherry Point, NC by D. W_ L_, Ph.D., LT, MSC, USNR and C_ N_, Psy. D., LT, MSC, USNR.  A clinical psychological interview was conducted by LT L_ on 000328 in the Psychology Department, Naval Hospital, MCAS.  The Board makes the following findings:
	a. At the time of the alleged criminal conduct, PFC S_(Applicant) did not have a severe mental disease or defect.
	b. The clinical psychiatric diagnoses are:
	AXIS I: No diagnosis or condition on Axis I
	AXIS II: Personality disorder not otherwise specified (borderline and antisocial traits)
	AXIS III: None noted (please see SNM’s medical record)
	c. At the time of the alleged criminal conduct, the accused did not suffer from a severe mental disease or defect that would interfere with his capacity to appreciate the nature and quality or wrongfulness of his conduct.
	d. The accused has the sufficient mental capacity to understand the nature of the proceedings against him and to conduct or cooperate intelligently in his defense.

000420:	Special Court Martial [trial dates 000322 and 000420]
	Charge I:  violation of the UCMJ, Article 86:
	Specification:  Did, on or about 000228, fail to go to his appointed place of duty.  Plea:  Guilty.  Findings: Guilty
	Charge II:  violation of UMCJ, Article 89.
	Specification:  On or about 000228, was disrespectful towards Lieutenant Colonel K. C_.  Plea:  Guilty.  Findings: Guilty
	Charge III: Violation of Article 91:
	Specification:  On or about 000228, was disrespectful toward Sergeant J_ H_, U.S. Marine Corps.  Plea:  Guilty.  Findings: Guilty
	Charge IV: Violation of Article 112a:
	Specification: Did, between 000123 and 000224, wrongfully use marijuana.  Plea:  Guilty.  Findings: Guilty
	Sentence:  Confinement for 90 days, forfeiture of $630.00 per month for 3 months, Bad Conduct discharge.
	CA 010316:  The sentence approved and ordered executed, except for bad conduct discharge.
	SA:  see SSPCMO.

000512:	Applicant from confinement.

000601:	Applicant requested voluntary appellate leave.

000608:	Applicant’s voluntary appellate leave approved.

000609:	Applicant to appellate leave.

020313:	NMCCCA:  Affirmed findings and sentence. 

020722:	SSPCMO:  Article 71c, UCMJ, having been complied with, Bad Conduct discharge ordered executed.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20020722 with a bad conduct discharge which was the sentence adjudged by a properly convened special court-martial.  That sentence was subsequently approved by both the convening and appellate review authorities (A and B).  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the Applicant’s issues were insufficient to merit clemency (C).  

In response to the Applicant’s issue and with respect to a discharge adjudged by a court-martial case, the action of the NDRB is restricted to upgrades based on clemency.  Clemency is an act of leniency that reduces the severity of the punishment imposed.  The Applicant implies that clemency is warranted due to the Applicant’s in-service psychiatric treatment and post-service diagnosis of schizophrenia.  The Applicant also implies clemency is warranted due to the Applicant’s “3 years and 6 months of good conduct and behavior.”  After a thorough review of the Applicant’s record, issues submitted, and post service documentation, the Board determined that clemency was not warranted and that the sentence awarded the Applicant at his court-martial was appropriate for the offenses he committed.  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 1105, DISCHARGE ADJUDGED BY SENTENCE OF COURT-MARTIAL, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 01 September 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 89, disrespect toward a superior commissioned officer, Article 91, insubordinate conduct or Article 112a, wrongful use of a controlled substance.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 205(2), Jurisdictional Limitations Authority for Review of Discharges.

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