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USMC | DRB | 2001_Marine | MD01-01098
Original file (MD01-01098.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD01-01098

Applicant’s Request
The application for discharge review, received 010820, 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 designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020320. 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 Par. 6210.2.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. I, R_ B. R_ (Applicant), joined the United States Marine Corps in Mar 1996. I served until Oct. 1997, when I was released on an administrative discharge due to repeated minor disciplinary infractions. I was diagnosed with A.A.D.H.D, Adult Attention Deficit Hyperactivity Disorder. I sent to the Review Board documentation of that diagnosis, along with papers explaining what the disorder is, and how it was the most probable cause of my trouble, since it causes a person to have no real attention span, and impulse control disorder. I was told in the response that I should never have been allowed in the Marine Corps in the first place. Well, I didn't hide anything to get in. I went through a doctors examination to join. If I never should have been allowed to join, then it seems to me that the personnel who enlisted me made a mistake, and it seems wrong that I should pay for that mistake. The discharge should be honorable, at worst a medical.
My discharge was inequitable because it was based on violations that are part and parcel of diagnosed, documented medical problems, and as such, are out of my hands. The minor infractions were done due to a medical disorder, and not out of maliciousness on my part. I have a wife, and a new baby on the way, and I want to take good care of them. This situation is making that difficult. I and my family need your help. Thank you for your time. (Signed by Applicant)

 Documentation
Only the service and medical records were reviewed, as the applicant did not provide additional documentation for the Board to consider.

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                951222 - 960325  COG

 Period of Service Under Review :
Date of Enlistment: 960326               Date of Discharge: 971007

 Length of Service (years, months, days):

         Active: 01 06 12
         Inactive: None

 Age at Entry: 20                          Years Contracted: 5

 Education Level: 12                        AFQT: 81

 Highest Rank: PFC

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.0 (4)              Conduct: 3.6 (4)

 Military Decorations: None

 Unit/Campaign/Service Awards: Rifle Marksman 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 Par. 6210.2.

 Chronological Listing of Significant Service Events :

960806:  Counseled for deficiencies in performance and conduct [failure to go to appointed place of duty at the time prescribed]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
960826:  NJP for violation of UCMJ, Article 86: on at least four occasions during July and August 96, without authority, failed to go to the Armed Medical Clinic for appointments dealing with the reconstruction of lost medical records; violation of UCMJ, Article 92: on or about 20 Aug 96, violate a lawful regulation, to wit: the DLIFLC & POM Command Policy and the MCD order which prohibits the use of tobacco products by Enlisted Entry level trainees; violation of UCMJ, Article 134: on or about 20 Aug 96, wrongfully communicated to LCpl K. J. H_ a threat to do bodily injury against Sgt A.G. B_.
 Awarded forfeiture of $437.00 per month for 2 months (suspended for 6 months), restriction and extra duties for 30 days (30 days extra duties suspended for 6 months). Not appealed.
970404:  NJP for violation of UCMJ, Article 86: on or about 0400, 28 Mar 97 without authority, fail to go at the time prescribed go to his place of duty, to wit: Armory and did remain so absent until 0730, 28 Mar 97; violation of UCMJ Article 86: on or about 0730, 2 Apr 97, without authority, absent himself from his unit and did remain so absent until about 1024,2 Ap 97.
         Award: Forfeiture of $490 per month for 2 months, restriction for 60 days. Not appealed.
970404:  Counseled for deficiencies in performance and conduct [recent NJP for Article 86/Unauthorized Absence]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

970414:  Eligible but not recommended for promotion to LCpl due to recent NJP.

970416:  Counseled for deficiencies in performance and conduct [conducted a barracks inspection and found room to be absolutely awful and nasty, similar to how a pig might live]. Necessary corrective actions explained, sources of assistance provided, disciplinary action warning issued.

970509:  Eligible but not recommended for promotion to LCpl due to recent NJP.

970616:  NJP for violation of UCMJ, Article 92: did, on board Camp Hansen rifle range, on or about 0815 on 2 Jun 97, having knowledge for firearm safety rules and a direct order issued by range safety officer, an order which it was his duty to obey failed to obey the same by wrongfully firing his weapon out of the lateral limits of the range; violation of UCMJ Article 134: did, which on Camp Hansen rifle range, on or about 0815 on 2 June 97, wrongfully and willfully discharge a firearm, to wit: firing his weapon out of the lateral limits of the range, under circumstances such as to endanger human life.
         Award: Forfeiture of $505 per month for 2 months, restriction for 60 days, reduction to E-1. No indication of appeal in the record.

970722:  Counseled concerning frequent involvement in episodes of misconduct and applicant acknowledged he is being processed for discharge.
970805:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions as evidenced by recurring involvement in episodes of misconduct.
970808:  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.
970811:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions. The factual basis for this recommendation was violation of articles of the UCMJ - Articles 86, 92, 134.

970904:  SJA review. [Extracted from CG, 3d MARDIV'S ltr of 970904]

970904:  GCMCA [CG, 3d MARDIV] directed the applicant's discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 971007 under other than honorable conditions 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 proper and equitable (D and E).

Issue 1. The Board found no evidence in the applicant’s official records to support his allegation that a medical condition was responsible for his misconduct or that he was erroneously enlisted. The Board found that the applicant’s age, education level, and test scores qualified him for enlistment. While he may feel that a medical condition was a factor that contributed to his actions, the record clearly reflects his willful disregard for the requirements of military discipline and demonstrated that he was unfit for further service. The record is devoid of evidence that the applicant was not responsible for his conduct or that he should not be held accountable for his actions. 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 31 Jan 97 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; Article 92, failure to obey a lawful general order; Article 134, communicating a threat and wrongfully discharging a firearm.
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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