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USMC | DRB | 1999_Marine | MD99-00894
Original file (MD99-00894.rtf) Auto-classification: Denied


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

ex-LCpl, USMC
Docket No. MD99-00894

Applicant’s Request
The application for discharge review, received 990619, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a documentary record discharge review. The applicant designated the American Legion organization as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000410. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned impropriety in the characterization of the applicant’s service. The Board’s vote was unanimous that the character and basis of the discharge shall change. The discharge shall change to: HONORABLE/ SECRETARIAL AUTHORITY, authority: MARCORSEPMAN Par. 4103.7.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. (EQUITY ISSUE) This former member avers that his GD is inequitable because personal and medical problems mitigated his misconduct or record, he was physically disabled at the time of his discharge, and his characterization of service has caused him undue hardship in his post-service life.

2. (EQUITY ISSUE) This former member further requests that the Board include provisions of SECNAVINST 5420.174c, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of his application.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of Applicant's Service Medical Record
Copy of DD Form 214 (2 copies)
Applicant's undated letter to the Board (3 pages)
          Applicant's Medical Board documentation (5 pages)
         Applicant's Administrative Separation Package (4 pages)
         DVA Little Rock Regional Office Statement of Case dated 10/31/96
PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: 930312 – 930405        COG HON

 Period of Service Under Review :
Date of Enlistment: 930406               Date of Discharge: 951215

 Length of Service (years, months, days):

         Active: 02 08 10
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4

Education Level: 12                        AFQT: 34

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.4 (6)                       Conduct: 4.2 (6)

 Military Decorations: None

 Unit/Campaign/Service Awards: Rifle Expert Badge (2d Award), NDSM

Days of Unauthorized Absence: None

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: MARCORSEPMAN Par. 6210.2.

 Chronological Listing of Significant Service Events :

940414:  NJP for violation of UCMJ, Article 92: on or about 13 Feb94 violate BnO P5530.1 by driving under the influence of alcohol with a BAC of .12%
 Awarded forfeiture of $20?.00 per month for 1 month, correctional custody for 7 days w/suspension from duty. Not appealed.
940804:  NJP for violation of UCMJ, Article 86: UA from Receiving, work section from 0730, 940719 to 1255, 940719.
         Award: Forfeiture of $233 per month for 1 month, restriction and extra duty for 14 days. Not appealed.
940805:  Counseled for deficiencies in performance and conduct [NJP actions taken 14APR94 and 4AUG94]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

950120:  NAVHOSP Camp Lejeune: 21 year old active duty black male presents to medical due to being referred by Chaplain for psych evaluation. Pt reports he has been having thoughts of suicide for 1 weeks, no definite plan. No homicidal thoughts. M.O. Notes: 21 year old black male with multiple life stresses mainly oriented around his command. Pt refuse to contract for safety and says he has seriously considered killing himself although I was unable to elicit any plans. Pt reports symptoms of depression with decreased appetite trouble sleeping and no longer being able to enjoy life. Pt was friends with a Marine who recently committed suicide with M16.
         Assessment: Moderate depression with suicidal ideation.
         Plan: Pt to Psych for eval. Duty doctor notified.

950120:  Psychological Evaluation: Mental Status Exam revealed 21 year old who appeared his stated age. He maintained poor eye contact and was marginally cooperative. His mood was angry and affect was very intense. The pt case across as defensive with a chip on his shoulder. .................There was no evidence of a psychosis, disabling neurosis, or organic brain syndrome. The pt's intelligence was clinically estimated to be in the low average range. .............He denied suicidal or homicidal ideation, intent, or plan. Pt is not considered a risk for suicidal behavior at this time. He continues to be a problem over time.
         Diagnosis: Axis I - Alcohol Abuse
                  Axis II - Anti-Social Personality Disorder, severe, EPTE
         Recommendation: Pt is not mentally ill and is responsible for his behavior. However, he does have a character and behavior disorder which is so severe that his ability to function effectively in the military environment is significantly impaired. He does not require and will not benefit from psychiatric hospitalization. He has made a poor adjustment to the demands of military service despite appropriate leadership, counseling, discipline or other appropriate methods. Therefore, it is recommended that he be processed by his local command for an administrative discharge in accordance with MARCORSEPMAN, Par 6203.3, by reason of unsuitability without recourse to further psychiatric evaluations, hospitalization or medical board. He has been offered supportive follow-up by Mental Health pending administrative separation. Command has been notified of findings and recommendations. These recommendations were reviewed with the patient.

950203:  Counseled for deficiencies in performance and conduct [inability to cope with your personal problems which required you to be seen by a psychiatrist for an adjustment disorder]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

950330:  SJA returned discharge package for corrective action. Package did not contain non-medical evidence showing specific examples of how the Marine is unable to function in the Marine Corps or evidence that member could overcome his deficiencies after his counseling. Additionally, separation under personality disorder is not appropriate when separation is warranted under any other paragraph of the order. SJA advised that separation on the basis of misconduct due to pattern appears more appropriate.
950630:  Medical Board from Naval Hospital, Camp Lejeune diagnosed applicant with "Mechanical Low Back Refractory to Conservative Treatment and :Limited Flexibility" and reference the medical board to the Physical Evaluation Board.
950801:  Applicant notified of intended recommendation for discharge under honorable conditions (general) by reason of misconduct due to minor disciplinary infractions as evidenced by the 5 Aug 94 counseling for deficiencies in performance and conduct, for non judicial punishments awarded on 14 Apr 94 and 4 Aug 94.
950803:  Applicant granted an extension for submission of rights in conjunctions with administrative discharge proceedings. Extension expires at 1330, 9AUG95. Failure to return notification will constitute waiver of rights.
950808:          Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board. (applicant not eligible for admin discharge board, doesn’t have requested amount of time in and is not being processed for an other than honorable discharge)

950809:  Applicant accepted the findings of the Medical Board and did not desire to submit a statement in rebuttal.

950814:  Commanding officer recommended discharge under honorable conditions (general) by reason of misconduct due to minor disciplinary infractions. The factual basis for this recommendation was based on the member's 5 Aug 94 counseling for deficiencies in performance and conduct, specifically for non-judicial punishments awarded on 14 April 1994 and 4 August 1994. Member was again counseled on 3 February 1995 concerning performance and conduct, specifically for his inability to cope with personal problems. On 20 July 1995, he was counseled concerning established pattern of misconduct based on minor disciplinary infractions and the intent to recommended him for administrative separation. On 11 April 1994, he was given non-judicial punishments for violation of Article 92, UCMJ for driving under the influence (BAC .12). On 4 August 1994, he was given non judicial punishment for violation of Article 86, UCMJ for being UA from his work section.

950927:  SJA review determined the case sufficient in law and fact.

950928:  GCMCA [CO, Second, FSSG] directed the applicant's discharge under honorable conditions (general) by reason of misconduct due to minor disciplinary infractions.

951004:  PEB advises applicant that he was found "Unfit for Duty" with a disability rating of 10% and advised applicant that he is to be separated from the naval service with severance pay.

951012:  Physical Evaluation Board advises CMC that applicant was found unfit to perform duties and requested command to effect applicant's separation with severance pay with a 10% disability rating.

951120:  Command (CG SECOND FSSG) requested from CMC that the discharge authority be revoked, since applicant had been approved for admin discharge due to minor disciplinary infractions.
PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 951215 under honorable conditions (general) for misconduct due to minor disciplinary infractions (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 not proper. (D and E).

The applicant’s military service did not contain at least three minor disciplinary infractions required for processing. The applicant had 2 NJP’s and one counseling entry. The counseling entry was not of a nature which could have been appropriately disciplined under NJP. Relief granted.

This Board does not have the authority to change the reason for discharge to a physical disability. Accordingly, if you feel your reason for discharge needs further modification, you may petition the Board for Correction of Naval Records utilizing the enclosed DD Form 149.

 Pertinent Regulation/Law (at time of discharge)

 A. Paragraph 8401, DISABILITY DISCHARGE WITH SEVERANCE PAY , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 18 Aug 95until 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., Article 86, unauthorized absence for more than 30 days].
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 obtain a copy of DoD Directive 1332.28 by writing to:
                  DA Military Review Boards Agency
                  Management Information and Support Directorate
                  Armed Forces Reading Room
                  Washington, D.C. 20310-1809

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
                  Washington Navy Yard
                  720 Kennon St SE Rm 309
                  Washington, D.C. 20374-5023     


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