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Docket No. MD06-00848

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

FOR OFFICIAL USE ONLY

ex-LCpl, USMC
Docket No. MD06-00848

Applicant’s Request

The application for discharge review was received on 20060607.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable and the Narrative Reason for Separation be changed to “Hardship/Medical.”  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 20070329.  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 and reason for discharge shall not change.  The discharge shall remain General (Under Honorable Conditions) by reason of misconduct due to a pattern of misconduct.

PART I - ISSUES AND DOCUMENTATION

Decisional Issues

The Applicant claims he was diagnosed with a Bi Polar disorder before a pattern of misconduct was established.

Documentation

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

Applicant’s DD Form 214 (Member 4)
Character Reference ltr from Y_ L. B_, Applicant’s wife, dated May 26, 2006
Six pages from Applicant’s medical record
Applicant’s sisters’ obituary

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	19990625 - 19990919	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19990920		Date of Discharge:  20040422

Length of Service (years, months, days):

Active:    04  07  03
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  20

Years Contracted:  5

Education Level:  12				AFQT:  91

Highest Rank:  Cpl				MOS:  2844

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.3 (11)				Conduct:  4.1 (11)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  National Defense Service Medal, Certificate of Appreciation, Rifle Expert Badge (2^nd award)

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:

001127:	Applicant admitted to TRISARF for alcohol dependence on 001030.
	AXIS I: Alcohol dependence.
	AXIS II: Deferred.
	AXIS III: None.
	AXIS IV: Moderate - Occupational.
	AXIS V: GAF 72.

011217:	Counseling:  Advised of deficiencies in performance and conduct (Domestic violence.), necessary corrective actions explained, sources of assistance provided.

020619:	NJP for violation of UCMJ, Article 128:  On or about 1800, 020508, unlawfully choked LCpl Y. B_.
Violation of UCMJ, Article 134:  On or about 1800, 020508, drunk and disorderly.
	Award:  Forfeiture of $534.00 per month for 1 month, restriction for 5 days and extra duty for 14 days.  Not appealed.

020708:	Applicant admitted at Tripler Army Regional Medical Center on 020528.
	AXIS I: Alcohol dependence.
	AXIS II: Deferred.
	AXIS III: None.
	AXIS IV: Maintaining sober lifestyle, marital improvement.
	AXIS V: 70.

020731:	Counseling:  Advised of deficiencies in performance and conduct (Results/findings and recommendations forwarded by the Family Advocacy Program Manager.), necessary corrective actions explained, sources of assistance provided, disciplinary warning issued.

031113:	Counseling:  Advised of deficiencies in performance and conduct (Domestic assault, due to an alcohol related incident.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

031124:	Counseling:  Advised of deficiencies in performance and conduct (Pattern of misconduct.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

031204:	NJP for violation of UCMJ, Article 128:  On board, on or about 1830, 031018, assault Mrs. Y. B_ unlawfully striking her with his arm and forcefully grabbing her.
Violation of UCMJ, Article 134:  On or about 1830, 031018, drunk and disorderly.
	Award:  Forfeiture of $250.00 per month for 2 months, restriction and extra duty for 45 days, reduction to E-3.  Forfeiture suspended for 6 months.  Not appealed.

040108:	Makalapa Branch Medical Clinic.
	Assessment:
	AXIS I: Bipolar disorder, Type I, currently manic, possibly rapid-cycling, controlled by medication
	Alcohol dependence, active - in early remission.
	AXIS II: Deferred.
	AXIS III: No diagnosis.
	AXIS IV: Routine military life.
	AXIS V: (current): 70.
	AXIS V: (highest): 70
	Pain: Not applicable.
	Deployment-related: No.
	Plans and Recommendations:
	Military:  PEB.
	Plan: Adjust meds as necessary, supportive therapy, PEB.
	Follow-up: With me in one month.

040112:	Applicant to Makalapa Branch Medical Clinic on 031027 without being able to clearly articulate the reason for his doing so, though he eventually related that he knew he was crazy and needed help.
	Upon that initial presentation he was sent to Tripler AMC for direct admission, with a diagnosis of Bipolar Disorder.  Current episode Manic.  He was seen on an outpatient basis 031103 and again today.
	Assessment:
AXIS I: Bipolar disorder, Type I, most recent episode manic (episode medication-inducted?) EPTE, aggravated by service.
	Disability for continued military service: severe.
	Disability for occupational functioning:  moderate.
	Panic disorder without Agoraphobia EPTE, aggravated by service.
	Disability for continued military service:  moderate.
	Disability for occupational functioning: mild.
	Alcohol dependence, in early full remission.
	AXIS II: Deferred.
	AXIS III: No diagnosis.
	AXIS IV: Psychiatric condition and sequellae - he does not wish to be separated from the USMC, though he recognizes that this is necessary.
	AXIS V: (current) 65
	AXIS V: (highest) 70
	Plan: Outpatient care while pending PEB.  Medication stabilization and supportive therapy.
	Military Recommendation:  It is recommended that this service member be medically separated from service.  The Medical Board concurs with the above findings and diagnoses, and recommends that the case be referred to the Physical Evaluation Board for disposition.  At the present time, the service member is considered fully competent to be discharged to his own custody.

040120:	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.

040130:	Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.

040130:	Commanding Officer recommended Applicant’s discharge with a general (under honorable conditions) by reason of misconduct due to a pattern of misconduct.

040316:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to a pattern of misconduct, that such misconduct warranted separation, and recommended discharge with a general (under honorable conditions).

040415:	NJP for violation of UCMJ, Article 92:  On board MCBR on or about 1532, 040411 willingly violated a lawful order by consuming alcohol: Reference: Battalion NJO on 031204, SNM was given a lawful order not to consume alcohol by the Battalion Commander.
	Award:  Forfeiture of $369.00 per month for 1 month, restriction and extra duty for 14 days.  Not appealed.

040416:	SJA review determined the case sufficient in law and fact.

040421:	GCMCA, Commanding General, Marine Corps Base Hawaii, directed the Applicant's discharge with a general (under honorable conditions) 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 20040422 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).  

The Applicant is requesting his characterization of discharge be changed to honorable.  When a Marine’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions.  Characterization of service as general (under honorable conditions) 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 the award of nonjudicial punishment (NJP) on 2 occasions for violations of the Uniform Code of Military Justice (UCMJ).  The Applicant’s misconduct included assault, unlawfully choking another service member, and violation of UCMJ Article 92 (Willful failure to obey order, regulation).  The Applicant’s conduct and proficiency markings, which form the primary basis for determining the character of his service, reflect his misconduct, and fall below that required for an honorable characterization of service.  An upgrade to honorable would be inappropriate.  Relief is therefore denied.

The Applicant claims he was diagnosed with a Bi Polar disorder before a pattern of misconduct was established. After a review of the record, it was discovered that a pattern of misconduct was established on 20020619.  The Applicant was diagnosed by competent medical authority with Bi-Polar disorder on 20040108.  The record of fact refutes the Applicant’s claim.  Relief is therefore 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.  The Applicant can provide documentation to support any claims of post-service accomplishments or any additional evidence related to this 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 [e.g., 86, unauthorized absence for more than 30 days].

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 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