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USMC | DRB | 2002_Marine | MD02-00307
Original file (MD02-00307.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD02-00307

Applicant’s Request
The application for discharge review, received 020116, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed to “Release due to personal problems due to PTSD.” The applicant requested a documentary record discharge review. The applicant did not list any representative on the DD Form 293. Subsequent to the application, the applicant obtained representation by the Veterans of Foreign Wars.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020829. 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-Pattern of misconduct (administrative discharge board required but waived), authority: MARCORSEPMAN Par. 6210.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1. My other than honorable discharge was inequitable because PTSD, trauma of Gulf War contributed to my untreated, unsuccessfully treated, alcoholism that led to behaviors related to said discharge.

2. My other than Honorable discharge is inequitable because objectionable behaviors were caused by early stage mental illness, which was, undiagnosed Amenity.

3. My youth.

 4. Applicant indicated above requested that Veterans of Foreign Wars act as counsel concerning his application. His records were reviewed on March 28, 2002 and the following comments are hereby submitted:

The applicant is requesting CLEMENCY as directed by SECNAVINST 5420.174C par 1.12 The clemency discharge was created by the President on September 16, 1974, in his Proclamation 4313, "Announcing a Program for the Return of Vietnam Era Draft Evaders and Military Deserters." Upon issuance to individuals who have an undesirable discharge or a punitive discharge, a clemency discharge serves as a written testimonial to the fact that the individual has satisfied the requirements of the President's program, and has fully earned his/her return to the mainstream of American society in accordance with that program.

In accordance with the current directive SECNAVINST 5420.174C par 9.3 (1) (d) COMBAT SERVICE Given heavy consideration for a GENERAL DISCHARGE UNDER HONORABLE CONDITIONS.

We refer this case to the Board for their careful and compassionate consideration and request the applicant's discharge be reviewed for CLEMENCY .

Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214
Copy of psychological assessment report dated April 23, 1996 (6 pages)
Copy of confidential psychological evaluation dated July 12, 1995 (8 pages)
Copy of psychiatric update dated July 5, 1996 (5 pages)
Copy of after care plan dated May 10, 1996

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                881207 - 890704  COG

 Period of Service Under Review :
Date of Enlistment: 890705               Date of Discharge: 911108

 Length of Service (years, months, days):

         Active: 02 04 04
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 98

 Highest Rank: PFC

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.8 (9)                       Conduct: 3.4 (9)

 Military Decorations: None

 Unit/Campaign/Service Awards: SASM with 2 Stars, NDSM, SSDR, MM

 Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct-Pattern of misconduct (administrative discharge board required but waived), authority: MARCORSEPMAN Par. 6210.3.

 Chronological Listing of Significant Service Events :

900123:  NJP for violation of UCMJ, Article 92: Violate BO 1700.14B by consuming alcoholic beverages while underage on 2240, 18 Jan 90.
         Award: Forfeiture of $185 per month for 1 month, restriction and extra duty for 14 days. Not appealed.
900130:  Counseled for deficiencies in performance and conduct. [Alcohol related incident, specifically, drinking underage and conduct unbecoming of a Marine, by using vulgar language loudly in public.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
900201:  NJP for violation of UCMJ, Article 92: Break restriction by leaving base and going to Starvin Marvin store on 0400, 28 Jan 90.
         Award: Forfeiture of $350 per month for 2 months, restriction and extra duty for 45 days, reduction to Pvt. Forfeiture suspended for 6 months. Not appealed.
900720:  Counseled for deficiencies in performance and conduct. [Frequent involvement with civil and military authorities.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
900724:  NJP for violation of UCMJ, Article 92: Violate BO P5000.2, by consuming alcohol in BEQ room on 2130, 17 Jul 90.
         Award: Forfeiture of $362 per month for 2 months, restriction for 45 days. Not appealed.
901129:  NJP for violation of UCMJ, Article 86: Failure to go at the time prescribed to Section PT at 0600, 19 Nov 90. Violation of UCMJ, Article 92: Violate BO P5000.2, by having alcohol in BEQ room on 0800, 19 Nov 90.
         Award: Forfeiture of $362 per month for 1 month, restriction for 45 days. Not appealed.
901129:  Counseled for deficiencies in performance and conduct. [Frequent involvement with civil and military authorities.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
901211:  NJP for violation of UCMJ, Article 92: Violate P5000.2, by having alcohol in BEQ room on 1900, 4 Dec 90.
         Award: Forfeiture of $362 per month for 2 months, restriction and extra duty for 30 days. Forfeiture suspended for 6 months. No indication of appeal in the record.
910205:  Applicant recommended for Level III treatment.

 910930:  Competency for duty evaluation: clinically intoxicated/Alcohol dependence. Not fit for duty.
911001:  NJP for violation of UCMJ, Article 92 (2 specs): (1) Violate BO 5000.2H, by operating a motor vehicle while on base suspended/revoked driving list on 0446, 6 Jul 91, (2) Violate BO P5000.2H, by operating a motor vehicle while on base suspended/revoked driving list on 0044, 21 Jul 91; violation of UCMJ, Article 111: Operating a motor vehicle while under the influence of alcohol on 0044, 21 Jul 91; violation of UCMJ, Article 86: Failure to go at the time prescribed to his appointed place of duty at 0730, 30 Sep 91; violation of UCMJ, Article 112: Drunk on duty on 0730, 30 Sep 91.
         Award: Forfeiture of $200 per month for 2 months, restriction for 60 days, reduction to Pvt. Not appealed.
911011:  NJP for violation of UCMJ, Article 86: Failure to go at the time prescribed to restricted muster at 0700, 5 Oct 91; violation of UCMJ, Article 92: Violated BnO P11000.1H by having in his possession in his BEQ room, dangerous weapons, to wit: a bayonet and a K-bar; violation of UCMJ, Article 108: Damage by striking with a knife, a wall in his BEQ room, military property of the United States, amount of damage valued at over $100.00 on 4 Oct 91; violation of UCMJ, Article 134: Broke BnCmdr's restriction by consuming alcohol.
         Award: Forfeiture of $376 per month for 2 months. Not appealed.
911023:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.
911023:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

911024:  Commanding Officer, 1 st Supply Battalion, 1 st Force Service Support Group, FMFPac, Camp Pendleton, CA recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct. The factual basis for this recommendation was applicant’s seven NJPs.

911030:  SJA review determined the case sufficient in law and fact.

911101:  GCMCA [Commanding General, 1 st Force Service Support Group] 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 911108 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 and 2. The Board found that the applicant’s alcohol dependence does not mitigate his misconduct. The Board does not consider the circumstances surrounding the applicant’s stated condition and implied incorrect diagnosis to be of sufficient nature to warrant an upgrade to his characterization of service. A characterization of service of under other than honorable conditions is warranted when the member's conduct constitutes a significant departure from that expected of a Marine. T he applicant’s service was marred by award of nonjudicial punishment (NJP) on seven occasions and adverse counseling entries on other occasions. This clearly constitutes a pattern of misconduct. No other narrative reason more clearly describes the circumstances surrounding the applicant’s processing for administrative separation. Relief denied.

Issue 3. The Board found that the applicant’s age, education level, and test scores qualified him for enlistment. While he may feel that his youth 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.

Issue 4. 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. The applicant did not provide sufficient documentation to warrant an upgrade to his discharge. Relief not warranted.

The applicant 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. Representation at a personal appearance hearing is recommended but not required


Pertinent Regulation/Law (at time of discharge)

 A. Paragraph 6210, Misconduct , of the Marine Corps Separation and Retirement Manual, ( MCO P1900.16D), effective 27 Jun 89 until 17 Aug 95.

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 108, destruction of government property; Article 111, driving under the influence of alcohol.
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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