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USMC | DRB | 2001_Marine | MD01-00626
Original file (MD01-00626.rtf) Auto-classification: Denied


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

ex-LCpl, USMC
Docket No. MD01-00626

Applicant’s Request
The application for discharge review, received 010405, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a documentary record discharge review. The applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010906. 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 CONDITIONS OTHER THAN HONORABLE/Separation in lieu of trial by court-martial, authority: MARCORSEPMAN Par. 6419.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. My undesirable discharge was inequitable because it was based on one isolated incident in 40 months of service with no other adverse action. I received a meritorious mast before I went AWOL. Service exclusive of the period of prolonged AWOL should generally be of such quality and length that it can be characterized as honest, faithful and meritorious and of benefit to the nation.

2. When I was discharge at the time, I wasn't given psychiatric help at that time, I have been taken anxiety pills prescribed by R____ D_____, M.S. Psychologist [Director, Mental Health Services, VSPHS Indian Hospital Lawton, OKLA 73507 (405) 353-0350 ext 470, the date was June 21, 1996.

3. At the date of discharge, my mental health & physical body was very deplorable and I been suffering every day mentally & my body weight was very deteriorating. I lost a lot of weight, and my nerves were deplorable also. I have nightmares at night and I cannot sleep right at all, NIGHTMARES.

4. I was given a discharge to be upgraded, but I still feel neglected and denied my VA Benefits because I suffer mentally everyday. I still am taken today anxiety pills, 2 pills by mouth 4 times a day. At VSPHS, Lawton Indian Hospital, Lawton, OKLA 73507 (405) 353-0350 ext 470 as of today my current Doctor is Dr K___K, address above.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Letter from S_____ M. K___, M.D. Psychiatrist
Character Reference Letters (3)
Letters from Applicant (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)                841005 - 841008  COG

 Period of Service Under Review :
Date of Enlistment: 841009               Date of Discharge: 880603

 Length of Service (years, months, days):

         Active: 02 01 00
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 47

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.5 (6)              Conduct: 3.8 (7)

 Military Decorations: None

 Unit/Campaign/Service Awards: Rifle Marksman Badge, Meritorious Mast

Days of Unauthorized Absence: 470

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

UNDER CONDITIONS OTHER THAN HONORABLE /Separation in lieu of trial by court-martial, authority: MARCORSEPMAN Par. 6419.

 Chronological Listing of Significant Service Events :

860228:  Counseled for deficiencies in performance and conduct. [Failure to be at his appointed place of duty and at the prescribed time on 860204]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

860228:  Counseled for deficiencies in performance and conduct. [Alcohol related incident utterance of a statement known to be false]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

860612:  Counseled for deficiencies in performance and conduct. [Immaturity and poor judgement. SMN was caught setting off fireworks on the 3 rd deck catwalk of BB265. Not only was he illegally using fireworks, but was he was in an unauthorized area]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

861203:  NJP for violation of UCMJ, Article 86: Failed to go at the time prescribed to morning formation at 0700, 861126.
 Awarded forfeiture of $180.00 per month for 1 month, restriction and
extra duties for 14 days (suspended for 6 months). Not appealed.
880518:  Applicant, having consulted with counsel certified under UCMJ Art 27b, requested discharge for the good of the service to escape trial by court- martial. In the request the applicant noted that his counsel had fully explained the elements of the offenses for which he was charged and that he understood the elements of the offenses. He further certified a complete understanding of the negative consequences of his actions and that characterization of service would be under other honorable conditions. The applicant admitted guilt to the following violations of the UCMJ: Article 86: Without authority, absent himself from his organization from 870119 to 880504 [470 days/A], when he was apprehended by civilian authorities.

880520:  SJA review determined the case sufficient in law and fact.

880525:  GCMCA [Commanding General] determined that applicant had no potential for further service, that separation in lieu of trial by court-martial was in the best interest of the service, and directed discharge under conditions other than honorable by reason of conduct triable by court-martial.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 880603 under conditions other than honorable 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).

Issue 1. The applicant implies that a permissive doctrine exists whereby one in the military is allowed a “single misdeed”. The Board believes that the applicant is confusing this with the civilian world wherein some offenses are treated with leniency because they are a first time incident on an otherwise clear record. No such leniency exists in the military. The applicant is responsible for his actions and must accept the consequences of his misdeeds. The Board will not grant relief on the basis of this issue. The Board disagrees with the applicant’s assertion that his overall service record warrants an honorable discharge. When a Marine’s service has been honest and faithful, it is appropriate to characterize that service as honorable. Under other than 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. T he applicant’s service was marred by award of nonjudicial punishment (NJP) for offenses triable by court-martial on one occasion, adverse counseling entries on other occasions, and an offense triable by court-martial on another occasion. The applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful disobedience of the orders and directives which regulate good order and discipline in naval service, and falls short of that required for an honorable characterization of service. An upgrade to honorable would be inappropriate. It must be noted that most Marines serve honorably and well and therefore earn honorable discharges. In fairness to those Marines, commanders and separation authorities are tasked to ensure that undeserving Marines receive no higher characterization than is due. Relief denied.

Issues 2 and 3. There is no evidence in the applicant’s service record that he was unfairly denied medical treatment. A medical diagnosis is not an issue upon which the NDRB can grant relief. The Board does not consider the circumstances surrounding the applicant’s stated condition and implied lack of treatment to be of sufficient nature to warrant an upgrade to his characterization of service.

Issue 4. The Veterans Administration determines eligibility for post-service benefits, not the NDRB. There is no requirement or law that grants recharacterization solely on the issue of obtaining veterans’ benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.
The applicant’s discharge characterization accurately reflects his service to his country. The discharge was proper and equitable. Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question. No such error or injustice occurred during the applicant’s enlistment. Additionally, 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 civilian life, subsequent to leaving the service. However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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. 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. Evidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs, are examples of verifiable documents that should have been provided to receive consideration for relief, based on post-service conduct. The applicant did not provide sufficient documentation to warrant an upgrade to his discharge. He is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge. The applicant can provide additional documentation to support any claims of post-service accomplishments at that time. Legal representation at a personal appearance hearing is highly recommended but not required. Relief denied.

The applicant’s last entry in his weapon’s firing record for rifle qualification is on 850724 in which the applicant qualified as a Marksman (208).

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 P1900.16C), Change 2, effective 15 May 84 until 26 Jun 89.

 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 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 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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