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USMC | DRB | 2002_Marine | MD02-00039
Original file (MD02-00039.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD02-00039

Applicant’s Request
The application for discharge review, received 010926, requested that the characterization of service on the discharge be changed to honorable or general/under honorable conditions. The applicant requested a personal appearance hearing in the Washington National Capital Region. The applicant did not designate a representative on the DD Form 293. In the acknowledgement letter to the applicant, he was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020529. 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. 6210.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. My discharge was issued improper, because my mental diagnoses was not taken into consideration at the time of separation. I believe the reasons for my behavior are related to the mental health diagnoses.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Applicant's Statement to the Board dtd August 13, 2001
Copy of DD Form 214
U.S. Naval Hospital Okinawa Mental Health Dept Narrative Summary dtd 5 Feb 98
Medical Service Record pages (8 pages)
Letter from AT1 D_ L. S_, Recruiter in Charge
Letter of recommendation, dtd 8 Nov 01

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                960229 - 960311  COG

 Period of Service Under Review :
Date of Enlistment: 960312               Date of Discharge: 980615

 Length of Service (years, months, days):

         Active: 02 03 04 (Doesn't exclude lost time.)
         Inactive: None

 Age at Entry: 17 (Parental Consent)       Years Contracted: 4

Education Level: GED              AFQT: 35

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.4 (6)              Conduct: 3.8 (6)

 Military Decorations: None

 Unit/Campaign/Service Awards: MUC, SSDR, LoA, Rifle Expert Badge

 Days of Unauthorized Absence: 31

 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 :

970814:  NJP for violation of UCMJ, Article 113: on or about 970730, while being posted as a sentinel at the Bn ramp, was found sleeping upon his post before he was regularly relieved.
 Awarded forfeiture of $244.00 per month for 1 month (suspended for 6 months), restriction and extra duties for 14 days. Not appealed.
971014:  Unauthorized absence since 0700 this date.

 971015:  NJP imposed and suspended on 970814 for period of 6 months hereby vacated and punishment ordered executed.
971229:  Surrendered on board this date.

 971230:  Counseled for deficiencies in performance and conduct [frequent involvement with military authorities and numerous incidents prejudicial to good order and discipline of the Marine Corps, these incidents include, but not limited to UA, disrespect, failure to obey orders, communicating a threat and misbehavior as a sentinel]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
980205:  Naval Hospital, Okinawa: Admitted on 03FEB98 because of a self-inflicted puncture wound to wrist.
         Diagnostic Impressions:
         AXIS I: Adjustment Disorder with Depressed Mood, 309.00
                  Occupational Problem, V62.20
         AXIS II: Personality Disorder NOS, 301.90, with Passive-Aggressive
                  And Borderline Traits
         AXIS III: S/P superficial lacerations and puncture wound to left wrist
         Recommendation: Mbr viewed to be competent and responsible for his action and there are no current psychological contraindications to any legal or disciplinary actions which the command may deem necessary, recommend administrative separation on basis of personality disorder or such severity that the Marine's ability to function safely and effectively in the military environment is impaired.
980206:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 86.
         Specification: UA from appointed place of duty.
         Charge II: violation of the UCMJ, Article 91.
         Specification 1: Disobey a direct order.
         Specification 2: Disrespect toward a NCO
         Charge III: violation of the UCMJ, Article 117
         Specification: Wrongfully used provoking words
         Finding: to Charge I and Charge II and the specification thereunder, guilty; to Charge III - no guilty.
         Sentence: Confined for 30 days, forfeiture of $303.00 per month for 1 month, reduced to E-1.
         CA action 980209: Sentence approved and ordered executed.
980316:  NJP for violation of UCMJ, Article 91: on or about 0630/980203, did threat with disrespectful language Cpl M_, a noncommissioned officer, then known by the member to be a NCO, who was then in execution of his office in saying to him: "I'm not going to listen to you dude", or words to that effect; violation of UCMJ, Article 91: on board Camp Schwab, Okinawa, Japan on or about 0630/980203, having received a lawful order from Cpl M_, a noncommissioned officer, then known by the member to be a NCO, to start morning clean up, an order which it was his duty to obey; violation of UCMJ, Article 134: on board Camp Schwab, Okinawa Japan on or about 0630/980203, did wrongfully communicate to Cpl M_, a threat by stating, "I'll knock your ass out".
         Award: Forfeiture of $463 per month for 2 months. No indication of appeal in the record.
980511:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.
980511:  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.
980511:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

980521:  SJA review determined the case sufficient in law and fact.

980522:  GCMCA [CG, 1 ST MARDIV (REIN)] directed the applicant's discharge 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 980615 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).

Issue 1. The Board found no impropriety or inequity in the applicant’s discharge proceedings. Involuntary separation for misconduct takes precedence over medical reasons that may warrant separation [A]. 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 two occasions, one summary court martial, 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 would be inappropriate. 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 91, disrespectful language to a NCO; Article 113, sleeping on post; Article 117, provoking words or gestures.
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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