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USMC | DRB | 2002_Marine | MD02-00339
Original file (MD02-00339.rtf) Auto-classification: Denied


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
 DISCHARGE REVIEW
DECISIONAL DOCUMENT
C O R R E C T E D C O P Y

ex-PFC, USMC
Docket No. MD02-00339

Applicant’s Request
The application for discharge review, received 020129, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed to uncharacterized. 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 021022. 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. 6210.6.
PART I - APPLICANT’S ISSUES AND DOCUMENTATION

 Issues, as submitted

Prior to the documentary discharge review, the Applicant introduced no issues as Block 8 on the DD Form 293 is blank.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Letter from Applicant dated September 13, 2001
Copy of DD Form 214
Received following faxed documentation on September 17, 2002:
 Letter from Applicant dated September 14, 2002
Character Reference ltr from 2 nd Lt J_ M. P_, USMCR, dtd Feb 23, 2000
Character Reference ltr from PFC J_ L. V_, USMC, dtd Feb 23, 2000
 Character Reference ltr from MAJ J_ W. W_, USMC (Ret) dtd Sep 11, 2002
Character Reference ltr from D_ L. H_ undtd
Character Reference ltr from J_ W. H_, Specialist, USA, dtd Sep 16, 2002
Character Reference ltr from S_ P_, dtd Sep 17, 2002
Character Reference ltr from Dr. M_ M_, Ph.D. dtd Feb 15, 2000

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                990318 - 990518  COG

 Period of Service Under Review :
Date of Enlistment: 990519               Date of Discharge: 000404

 Length of Service (years, months, days):

         Active: 00 10 06
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 73

 Highest Rank: PFC

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.9 (3)                       Conduct: 3.9 (3)

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 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. 6210.6.

 Chronological Listing of Significant Service Events :

000131:  Mental Health Clinic: Axis I: Occupational problem, history of polysubstance abuse. Axis II: Personality disorder NOS with antisocial and narcissistic personality traits. Recommendation: Strongly recommend expeditious administrative separation in accordance with MARCORSEPMAN, par 6203.3, by reason of unsuitability without recourse to further psychiatric evaluation, hospitalization or medical board.

000224:  Special Court-Martial
         Charge I: violation of the UCMJ, Article 90, (3 specifications):
         Specification 1: Disobey lawful order from superior commissioned officer.
         Specification 2: Disobey lawful order from superior commissioned officer.
         Specification 3: Disobey lawful order from superior commissioned officer.
         Findings: to Charge I and specifications thereunder, guilty.
         Sentence: No punishment awarded.
         CA 000605: The findings and the sentence are disapproved. The charge is dismissed.

000308:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of convenience of the government due to a personality disorder and misconduct due to the commission of a serious offense.
000308:  Applicant advised of his rights and having consulted 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.

000308:  Commanding Officer recommended discharge under other than honorable conditions by reason of convenience of the government due to a personality disorder and misconduct due to the commission of a serious offense. The factual basis for this recommendation was diagnosis of a personality disorder NOS with antisocial and narcissistic personality features and disobeying a lawful order from a superior commissioned officer as supported by a special court-martial conviction.

000324:  SJA review determined the case sufficient in law and fact.

000327:  GCMCA [Commander, Marine Corps Base, Hawaii] directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 000404 under other than honorable conditions for misconduct due to the commission of a serious offense (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’s refusal to obey orders constituted the commission of a serious offense. No other narrative reason more clearly describes the circumstances surrounding the Applicant’s processing for administrative separation. A military or civilian conviction is not required for discharge under this provision. Marines who are involuntarily separated for this reason are normally discharged under other than honorable conditions. 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.

Concerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces. Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment. A request for waiver is normally done only during the processing of a formal application for enlistment through a recruiter. Relief is therefore 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. 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 P1900.16E), effective 31 January 1997 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 90, disobeying a lawful order of a commissioned officer.
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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