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USMC | DRB | 2000_Marine | MD00-00764
Original file (MD00-00764.rtf) Auto-classification: Denied


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

ex-PVT, USMC
Docket No. MD00-00764

Applicant’s Request
The application for discharge review, received 000525, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a personal appearance hearing discharge review before a traveling panel. The applicant listed Veteran of Foreign Wars as his representative on the DD Form 293. In the acknowledgement letter to the applicant, he was informed that the Naval Discharge Review Board (NDRB) does not travel, all hearing are held in the Washington, DC Area. The Naval Discharge Review Board (NDRB) also advised that the board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010822. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service. The Board’s vote was unanimous that the character of the discharge shall not change. The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MARCORSEPMAN 6210.5.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. I wasn't given counseling or an opportunity to get my Marine Corp career in order, or an opportunity to seek counseling for my emotional problem.

2. I feel my discharge was to harsh, given the fact that I had two years of creditable military service in the Marine Corp.

3. Service Connection is presently pending wit the U.S. department of Veterans' Affairs for the following conditions. (1) PTSD, (2) Nervous Conditions, (3) Flat Feet. I feel this documentation should be obtained and made a part of my request for my upgrade of discharge to Honorable.

4. All other documentation and evidence will be submitted at the revolving Board that I wish to request and appear at.

5. (VFW Issue) The applicant was a member of the United States Marine Corps. His file and application has been review. We contend at the time of issuance, the discharge was inconsistent with standards of discipline in the Military Service of which the applicant was a member. We ask for consideration of an upgrade discharge based on EQUITY. We refer this case to the Board for their careful and compassionate consideration and request the applicant's discharge be reviewed for an Honorable discharge.

Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of Commander's Administrative Separation Letter
Letter from PVT R___
Copy of Letter of Continuity
Copy of VA Claim Letter (2pgs)
Copy of Request for Information from VA
Statement in Support of Claim
Letter from Applicant (2pgs)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              None
         Inactive: USMCR(J)                970603 - 971107  COG

 Period of Service Under Review :
Date of Enlistment: 971108               Date of Discharge: 991109

 Length of Service (years, months, days):

         Active: 02 00 02
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 48

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.2 (8)              Conduct: 3.7 (8)

 Military Decorations: None

 Unit/Campaign/Service Awards: Marksman Rifle Badge

Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MARCORSEPMAN 6210.5.

 Chronological Listing of Significant Service Events :

970821:  Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

980319:  Applicant evaluated by the Mental Health Clinic for suicidal ideation and diagnosed with borderline personality traits. This mental health evaluation revealed a long history of mental health counseling that extended prior to his enlistment. He also suffers from recalcitrant preplans (flat feet), a condition which existed prior to entry and for which he had a waiver. This condition prohibits his tolerance of full duty, Marine Corps training, and is not expected to improve.

980916:  Counseled for deficiencies in performance and conduct. [Erroneous Enlistment.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

xxxxxx:  Applicant notified of intended recommendation for discharge general under honorable conditions by reason of erroneous enlistment.
980922:  Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

980922:  Commanding Officer, Fox Co, 2d Battalion, 4 th Marines recommended discharge general under honorable conditions by reason of erroneous enlistment. The factual basis for this recommendation is your diagnosis of Recalcitrant Preplans as well as suicidal ideations and borderline personality traits which existed prior to entry. On 980319, you were evaluated by the Medical Officer, Naval Hospital, Camp Pendleton, and found to be unable to perform duty. On the basis of the foregoing, the command has determined that you possess no potential for further service.

981005:  Commanding Officer, 5 TH Marines, 1 st Marine Division recommended applicant discharge general under honorable condition based on his service record.

981211:  Applicant evaluated by the Mental Health Clinic for suicidal ideation and diagnosed with borderline personality traits. The marine has a history of mental health counseling that existed prior to his enlistment. This condition caused 2 nd Battalion, 4 th Marines to start an administrative separation package. I concur with the evaluation from 2 ND Battalion, 4 th Marines. PCF H___ remains a serious risk for himself and others if retained in service. PFC H personality disorder is so severe that his ability to function in a military environment is significantly impaired. He also suffers from recalcitrant preplans (flat feet), a condition which existed prior to entry and for which he had a waiver. This condition prohibits his tolerance of full duty, Marine Corps training, and is not expected to improve.

990129:  GCMCA [Commander, 1 st Marine Division] directed the applicant's discharge honorable by reason of erroneous enlistment (personality disorder (EPTE).

990514:  Special Court-Martial.
         Charge I: violation of the UCMJ, Article 112a, (3 Specifications):
         Specification 1: Did on or about 990101, wrongfully use marijuana.
         Specification 2: Did on or about 990110, wrongfully use marijuana. Specification 3: Did on or about 990211, wrongfully possess marijuana.
         Findings: to Charge I and specification 1 and 2 thereunder, guilty. To specification 3 under Charge I, withdrawn.
         Sentence: Confinement for 90 days, forfeiture of $639.00 pay per month for 3 months, reduction to E-1.
         CA (Undated): Sentence approved and ordered executed.

990514:  To confinement at Base Brig, Marine Corps Base, Camp Pendleton, California.

990726:  Release from confinement.

991102:  CMC Washington DC approved applicant discharge under other than honorable condition by reason of misconduct due to drug abuse.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 991109 under other than honorable conditions for misconduct due to drug abuse (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 proper and equitable (D and E).

Issue 1. The Board found no evidence the applicant desired to “get his Marine Corp career in order.” In fact, the service records indicate the applicant desired to get discharged as soon as possible throughout the period of March 1998 until his final discharge. In addition, there is no credible evidence provided by the applicant nor in the official records that indicate the applicant was denied the opportunity to seek counseling for alleged emotional problems. Relief is not warranted on this issue.

Issues 2 and 5. The applicant states his discharge was too harsh, given his history of prior service. The VFW requested the NDRB review the case in terms of the equity of his discharge. The applicant plead guilty and was found guilty of using illegal drugs during a trial by Special Court-Martial. Drug abuse warranted processing for separation, under other than honorable conditions by narrative reason of misconduct. The applicant’s discharge characterization accurately reflects his service to his country. The discharge was proper and equitable. Relief denied.

Issue 3. It is the applicant’s responsibility to collect and submit documentation he believes will further his case for review by the NDRB. The NDRB will not request documentation from the Department of Veteran’s Affairs on behalf of the applicant. There is no requirement or law that grants recharacterization solely on the issue of obtaining veterans’ benefits. Relief is not warranted on this issue.

Issue 4. The applicant states other documentation and evidence will be submitted at the board hearing that he wishes to appear at. The following is provided for the applicant’s edification. The NDRB is authorized to consider outstanding post-service conduct, 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. However, there is no law or regulation that provides that an unfavorable discharge may be upgraded based solely on the passage of time, or good conduct in the civilian life subsequent to leaving the service. Normally, to permit relief, an error or injustice must be found to have existed during the period of enlistment in question. No such error or injustice is evident in the applicant’s service record. In determining whether a case merits a change based on post-service conduct, the NDRB considers the length of time since discharge, the applicant's record of community service, employment, conduct, educational achievements, and family relationships. Verifiable proof of any post-service accomplishments must be provided in order for the applicant to claim post-service conduct and behavior as a reason to upgrade a less than Honorable discharge. The applicant's efforts need to be more encompassing than those provided. The applicant should have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, and certification of non-involvement with civil authorities in order for consideration for relief based on post-service conduct. At this time the applicant has not provided sufficient documentation of good character and conduct. Therefore no relief will be granted.

The applicant is reminded that he remains eligible for a personal appearance hearing provided that an application is received within 15 years from the date of discharge . Representation at a personal hearing is not mandatory, but is strongly recommended. This representation need not be a lawyer, but may be any person of stature and good standing in the community including the various veterans’ organization.



Pertinent Regulation/Law (at time of discharge)

 A. Paragraph 6210, MISCONDUCT , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 18 Aug 95 to 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 112a, wrongful use of a controlled substance.
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 view DoD Directive 1332.28 and other Decisional Documents by going online at “ afls10.jag.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:

                  Naval Council of Personnel Boards
                  Attn: Naval Discharge Review Board
                  720 Kennon Street SE Rm 309
                  Washington Navy Yard DC 20374-5023      


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