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USMC | DRB | 2001_Marine | MD01-00969
Original file (MD01-00969.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD01-00969

Applicant’s Request
The application for discharge review, received 001207, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed to medical. The applicant requested a personal appearance hearing review. The applicant did not designate a representative on the DD Form 293.
Applicant's case was closed by the Board without action on June 29, 2001, but was reopened on August 22, 2001 after receiving the applicant's service and medical records. Applicant was advised the Board first conducts a documentary review prior to any personal appearance.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020215. 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 and narrative reason of the discharge shall not change. The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MARCORSEPMAN Par. 6210.3.



 PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. My discharge was unjust because my appeal was never reviewed prior to the Administrative discharge board.

2. I feel the discharge to be unjust because the evidence of my narcolepsy, signed by a registered doctor, was not considered, and deemed insufficient by the board.

3. My discharge was improper because my PAST family troubles were brought into the proceedings.

4. My discharge was unjust because it was known that I had narcolepsy, and an evaluation was being conducted.

5. I feel the discharge awarded was improper because my diagnosis, by Navy doctor's, was held until after my Administrative Discharge Board.

6. Each violation of Article 86, which resulted in NJP, were directly contributed to undiagnosed narcolepsy.

7. It was claimed that my narcolepsy was a condition "Existing Prior to Enlistment", but my medical record has no record of that listed. My pre-enlistment exam does not show this. (doc 2, item 1, Question 4, Answer 4)

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Medical documentation dtd 2 Sep 99
 CO, Marine Aviation Logistics Squadron 26 to CMC dtd 8 Nov 99 Congressional/ Special Interest Correspondence
Applicant's undtd letter of appeal
Applicant's statement of rebuttal to 6105 dtd 970429
Sleep Disorder Center Consultation dtd 7/28/99 (2 pages)
Neurology Consult dtd 19 Jul 99
Applicant's Mother ltr to the Board dtd Oct 25, 1999
ENT/Otolaryngology Consult dtd 14 Jun 99

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
[APPLICANT'S ENLISTMENT CONTRACT NOT CONTAINED IN SERVICE RECORD AND SOME OF REQUIRED INFORMATION UNCONFIRMED.]

          Active: Unknown
         Inactive: USMCR(J)                Unknown

 Period of Service Under Review :
Date of Enlistment: 950605               Date of Discharge: 000216

 Length of Service (years, months, days):

         Active: 04 08 12
         Inactive: None

 Age at Entry: 18                          Years Contracted: Unknown

 Education Level: Unknown                  AFQT: Unknown

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.2 (13)             Conduct: 3.5 (13)

 Military Decorations: None

 Unit/Campaign/Service Awards: Rifle Marksman Badge, NDSM, SSDR, MUC

 Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MARCORSEPMAN Par. 6210.3.

 Chronological Listing of Significant Service Events :

951208:  NJP for violation of UCMJ, Article 123: At schools Co, HqBn, MCLB did forge the original expiration date of SNM's light duty chit to wit: SNM erased the original number of "3 Nov 99" and falsely changed it to "28 Nov 95" thus giving himself an additional 25 days of light duty which was discovered by his platoon Sergeant on or about 22 Nov 95.
Awarded extra duties for 14 days. Not appealed.
960827:  Counseled for deficiencies in performance and conduct [inability to be at appointed placed of duty at the appointed time - have overslept and been later for formation on multiple occasions]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
970221:  Counseled for deficiencies in performance and conduct [inability to be at appointed place od duty at the appointed time - overslept and failed to contact NCOIC concerning whereabouts on two separate occasions]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
970314:  NJP for violation of UCMJ, Article 86: UA 0731, 6 Mar 97 - 0759, Mar 97 failed to go at the time prescribed to morning formation at 0730 on 6 Mar 97.
 Awarded reduction to E-2 (suspended for two months), forfeiture of $100.00 per month for 2 months, restriction and extra duties for 30 days. Not appealed.
970318:  Eligible for but not recommended for promotion to Cpl for Apr 97 promotion because of recent NJP for violation of Article 86.
970416:  NJP imposed and suspended on 970314 for period of 2 months vacated and punishment ordered executed.
970418:  NJP for violation of UCMJ, Article 86: UA 0446, 15 Apr 97 - 0547, 15 Apr 97, from messhall bldg.
 Awarded reduction to E-1, forfeiture of $100.00 per month for 2 months (suspended for 2 months), restriction and extra duties for 30 days. Not appealed.
970422:  Counseled for deficiencies in performance and conduct [frequent misconduct and violations of UCMJ which resulted in NJP]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
970429:  NJP imposed and suspended on 970418 for period of 2 months vacated and punishment ordered executed.
970429:  NJP for violation of UCMJ, Article 134: At MALS-12 Iwakuni, JA 0135, 22 Apr 97, broke restriction; violation of UCMJ, Article 86: UA 1231, 22 Apr 97 - 1335, 22 Apr 97 from Gate Guard Duty, AVI complex, at MCAS Iwakuni, JA; violation of UCMJ, Article 86: UA 1801, 26 Apr 97 - 1909, 26 Apr 97 from EPD/Restriction at MCAS Iwakuni, JA.
 Awarded forfeiture of $100.00 per month for 2 months, restriction and
extra duties for 45 days (30 days restriction and extra duties suspended for 2 months). Not appealed.
980821:  Counseled for deficiencies in performance and conduct [repeated violation of Article 86 - being late for duty and failure to notify immediate supervisor of status]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
981027:  Counseled for deficiencies in performance and conduct [concerning unauthorized absence from appointed place of duty]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
981028:  NJP for violation of UCMJ, Article 86: Failure to be at appointed place of duty at appointed time. On 14 Oct 98, was UA from 0630 981014 to 0729 981014.
 Awarded reduction to E-2 (suspended for 6 months). Not appealed.
981217:  NJP imposed and suspended on 981028 for period of 6 months vacated and punishment ordered executed.

981217:  NJP for violation of UCMJ, Article 86 (3 specs):
 Spec 1 - On 6 Nov 98, was UA from appointed place of duty from 0650 to 0734
Spec 2 - on 24 Nov 98, was UA from appointed place of duty from 0650 to 0726
Spec 3 - on 11 Dec, UA from appointed place of duty from 0650 to 0820.
Award: Reduction to E-1 (suspended for 6 months). Not appealed.

990420:  NJP imposed and suspended on 981217 for period of 6 months vacated and punishment ordered executed.


990421:  NJP for violation of UCMJ, Article 86: Was UA from appointed place of duty on 12 Mar 99.
         Award: Restriction and extra duty for 45 days (suspended for 6 month). Not appealed.
990421:  Counseled for deficiencies in performance and conduct [failure to be at the appointed place at the appointed time]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
990505:  Naval Hospital Camp Lejeune: Pt is 22 year old black male who presents with complaint of difficulty sleeping since joining USMC (Feb 96). Report history of being late for work several times which has resulted in several demotions in rank….Reports a few episodes of daytime somnolence. Reports difficulty during childhood also……..
         A/P: 1 - Rule out sleep disorder 2 - ENT consult 3 - Neurology Eval for Sleep Study 4 - Return for counseling after ENT eval.
990609:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by nonjudicial punishments of 8 Dec 95, 14 Mar 97, 18 Apr 97, 29 Apr 97, 28 Oct 98, 17 Dec 98, and 21 Apr 99 along with numerous counseling entries.
990609:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
990719:  Naval Hospital Camp Lejeune: 22 year old black male frequently late for duty. Attributes these episodes to hypersomnolence in spite of using alarm clocks. Member presented to me initially without his medical record.
         Impression: Sleep/arousal Disorder. No anatomic/obstructive apnea.
         Diagnosis includes narcolepsy/depression. Arousal problem may suggest narcolepsy.
         Plan: Order Sleep Latency Study. Referral for Neurology.
990826:  Naval Hospital Camp Lejeune: Pt underwent Multiple Sleep Latency Test. Interpretation: This daytime multiple sleep latency test was abnormal with a mean sleep latency of <1 minute. Sleep onset REM was recorded in 2 of the four trials.
         Clinical correlation: If sleep deprivation can be excluded prior to, this study confirms the diagnosis of pathologic hypersomnolence. The present of sleep onset REM in 2 out of 4 trials is consistent with the diagnosis of narcolepsy.
990824:  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 the misconduct warranted separation, and recommended discharge under other than honorable conditions.

991002:  Commanding officer, concurring with the recommendation of the Administrative Discharge Board that Pvt (Applicant) be separated with an under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

000104:  Naval Hospital, Camp Lejeune: Follow-up Narcolepsy. Meds initially helped quite a bit. Has had periods without meds.
         Assessment: Narcolepsy vs idiopathologic hypersomnolence.
         Recommendation: 1 - Provigil 200 mg po AM. If in 1-2 months notices still continuously sleepy would suggest increase to 200mg po AM, 200 mg po in mid afternoon. 2- Would not add stimulates at this time. 3- Pt should have profile of extreme disruption of sleep patterns, extended duty.

000126:  GCMCA [Commander, 2d MAW] advised CMC applicant was discharged under other than 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 000216 under other than honorable conditions for misconduct due to a pattern of misconduct (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).

Issues 1-3. The NDRB is chartered to consider the propriety and equity of a former service member’s discharge. The NDRB does not retry a case and second guess what occurred at prior hearings or Boards. The Borad determined the applicant was properly notified of the recommendation to separate him for Pattern of Misocnduct (POM), the applicant was awaded an Administrative Discharge Board and was found guilty of miscondcut, POM. The applicant states in isues 1-3 that his appeal was never heard prior to the Admin Board, the evidence of his narcolepsy was not considered and his past family problems were brought into the proceedings. An Administrative separation board is not bound by strict rules of evidence, as is a court-martial. Therefore, the NDRB found no impropriety or inequity in the discharge proceedings or the discharge characterization assigned in this case. Relief denied.

Issues 4-6. The Board found no inequity or impropriety in the fact that the applicant was administratively separated under other than honorable conditions despite his medical diagnosis that was consistent with narcolepsy. Administrative separation for misconduct takes precedence over separation for medical disability [A]. The Board was not convinced that the applicant’s medical condition directly excused his misconduct. A characterization of service of 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 seven occasions and adverse counseling entries on other occasions. 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. No other narrative reason for separation more clearly describes why the applicant was processed for administrative separation. Relief denied.

Issue 7. The Board found that whether or not his medical condition existed prior to enlistment had no relevance to the applicant’s misconduct. Relief denied.

 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.




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 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 86, unauthorized absence from place of duty; Article 123, forgery; Article 134, breaking restriction.
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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