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USMC | DRB | 2000_Marine | MD00-01064
Original file (MD00-01064.rtf) Auto-classification: Denied


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

ex-PVT, USMC
Docket No. MD00-01064

Applicant’s Request
The application for discharge review, received 000918, requested that the characterization of service on the discharge be changed to honorable, and the reason for the discharge be changed to end of enlistment contract. The applicant requested a documentary record discharge review. The applicant listed American Legion as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010502. 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/IN LIEU OF TRIAL BY COURT-MARTIAL, authority: MARCORSEPMAN Par. 6419.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

 1. The veteran who is presently diagnosed with psychotic disorder, NOS298.90 DSM-IV was first seen by mental health professionals on 4/12/1999. The veteran was separated from the Marine Corps on 1/26/1999. It is our contention that the veterans conditions manifested while in service and may have contributed to his periods of misconduct.

2. It is for the reason listed above that we feel the character of separation given should be upgraded to honorable based on his mental conditions.

Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Letter of Diagnosis from Southeast Recovery & Mental Health Care Services (14pgs)
Copy of Intake (Diagnostic Assessment Crisis Intervention Form from Southeast, Inc (4pgs)
Cover Letter from Franklin County Veterans Service Commission (2)
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              None
         Inactive: USMCR(J)                960524 - 961123  COG

 Period of Service Under Review :
Date of Enlistment: 961124               Date of Discharge: 990126

 Length of Service (years, months, days):

         Active: 02 02 03
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

Education Level: 12                        AFQT: 31

 Highest Rank: PFC

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: NMA                  Conduct: NMA

 Military Decorations: None

 Unit/Campaign/Service Awards: None

Days of Unauthorized Absence: 48

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

UNDER OTHER THAN HONORABLE CONDITIONS/IN LIEU OF TRIAL BY COURT-MARTIAL, authority: MARCORSEPMAN Par. 6419.

 Chronological Listing of Significant Service Events :

971212:  NJP for violation of UCMJ, Article 86: Did on or about 971016, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: Motor Transport Morning Formation, violation of UCMJ, Article 92: Did at between 971015 and 971016, fail to obey a lawful general order, to wit: MCO 1700.22C by consuming alcohol while under the legal age, violation of UCMJ, Article 92: Did between 971015 and 971016, fail to obey a lawful written order, to : BnO P11240.1K by consuming alcohol within eight hours prior to duty, violation of UCMJ, Article 111a: Did on or about 1500, 971202, recklessly operate his assigned government vehicle on I-395 North by swerving in and out of traffic lanes at a high rate of speed.
 Awarded: Forfeiture of $200.00 pay per month for 1 month, forfeiture of $250.00 pay per month for 1 month (suspended for 6 months), restriction and
extra duties for 45 days. Not appealed.
980327:  Counseled for deficiencies in performance and conduct. [Failure to be at appointed place of duty at appointed time, continuous unauthorized absence and recklessly operating an assigned government vehicle.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

980429:  Forfeiture of $250.00 pay per month for 1 month, imposed and suspended on 971222 is hereby vacated and ordered executed.

980506:  NJP for violation of UCMJ, Article 86: Did on or about 980406, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: Motor Transport Morning Formation at 0720, violation of UCMJ, Article 86: Did on or about 980415, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: Motor Transport Morning Formation at 0545.
 Awarded forfeiture of $519.00 per month for 2 months (suspended for 6 months), restriction and
extra duties for 14 days. Not appealed.

 980506:  Counseled for deficiencies in performance and conduct. [Recent NJP for unauthorized absences held on 980506.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

981102:  NJP imposed and suspended on 980930 for a period of 6 months is hereby vacated and the punishment is ordered executed.
981105:  NJP for violation of UCMJ, Article 112a: Did on or about 980908, at an unknown location admit to the use of marijuana, a controlled substance.
 Awarded forfeiture of $450.00 per month for 2 months (forfeiture of $250.00 pay per month for 2 months suspended for 6 months), restriction and
extra duties for 45 days. Not appealed.
981112:  NJP for violation of UCMJ, Article 92: Did on or about 981020, disobey a lawful order issued by Cpl G____, to wit: to return to the duty hut after throwing the trash out; violation of UCMJ, Article 92: Did on or about 981025, violate his restriction by going to the Marine Corps Exchange without an escort or prior approval from the Duty NCO or Staff Duty NCO.
 Awarded forfeiture of $463.00 per month for 2 months, restriction and
extra duties for 45 days. Not appealed.

NO DISCHARGE PACKAGE AVAILABLE

PART III – RATIONALE FOR DECISION AND PERTINENT
REGULATION/LAW

Discussion

The applicant was discharged on 990126 under other than honorable conditions in lieu of trial by court-martial (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).

In response to applicant’s issues 1 and 2, a mental health diagnosis is not an issue upon which the NDRB can grant relief. When reviewing a discharge, the NDRB does consider the extent to which a psychological problem might effect an applicant’s performance and ability to conform to the military’s standards of conduct and discipline. The NDRB does not consider the circumstances surrounding the applicant’s stated condition nor the treatment given to the applicant to be of sufficient nature to exculpate the applicant’s misconduct. In fact, the NDRB sees no connection between the applicant’s misconduct and his mental condition. The applicant did not have any history of psychiatric treatment before he was first evaluated in April 1999. The applicant attests he did not begin hearing voices until February 1999. The applicant’s misconduct began in October 1997. The applicant violated UCMJ Articles 86 (unauthorized absence/ 4 specs), 92 (failure to obey a lawful general order/ 4 specs), 111a (recklessly operate a government vehicle), and 112a (illegal use of a controlled substance). The Board does not find his psychiatric history as sufficient nature to exculpate the applicant from his misconduct. Relief is not warranted.

The following is provided for the applicant’s edification. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge (E). The applicant must be aware that 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 the civilian life subsequent to leaving the service. Normally, to permit relief, an error or injustice must have been found to have existed during the period of enlistment in question. 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, may be considered by the NDRB. The applicant is reminded that he is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge. Representation at personal appearance hearing is highly recommended.

Pertinent Regulation/Law (at time of discharge)

 A. Paragraph 6419, SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective
18 Aug 95 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 92, failure to obey a lawful order.
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 “ afls14.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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