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USMC | DRB | 2002_Marine | MD02-01000
Original file (MD02-01000.rtf) Auto-classification: Denied


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

ex-PFC, USMC
Docket No. MD02-01000

Applicant’s Request
The application for discharge review, received 020708, requested that the characterization of service on the discharge be changed to general (under honorable conditions). The Applicant requested a personal appearance hearing before the board in the Washington National Capital Region. The Applicant listed a civilian counsel as the representative on the DD Form 293.

Decision

A personal appearance discharge review was conducted in Washington, D.C. on 030416. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the NDRB discerned no impropriety in the characterization of the Applicant’s service at the time of discharge. However, after consideration of the Applicant's diagnosed clinical disorder and substantial post-service accomplishments, the Board determined that relief was warranted on the basis of equity. The Board voted 3 to 2 to upgrade the characterization of the discharge to honorable with the minority voting to upgrade only to general (under honorable conditions). Additionally, the Board voted 3 to 2 to change the reason to Secretarial Authority. Thus, the discharge shall change to: HONORABLE/Secretarial Authority, authority: MARCORSEPMAN Par. 6214.
If appropriate add the following:
The NDRB did note an administrative error on the original DD Form 214. Block 28, Narrative Reason for Separation should read: “_____________” vice “__________”. The original DD Form 214 should be corrected or reissued as appropriate.







THIS IS THE CORRECT SHELL FOR A PATTERN OF MISCONDUCT, EFFECTIVE 29 JUL 87 UNTIL 26 JUN 89. The finding is from MCO P1900.16C Ch 4, effective 29 Jul 87. Changes 5, and 6 not applicable to the finding for misconduct (Par 6210). SPD Codes are listed on page 1-47 of MCO P1900.16C Ch 1, 6 Apr 83. Changes 2 – 6 not applicable to SPD Codes or Narrative Reason for Separation.

SPD CODE         NARRATIVE REASON FOR SEPARATION
GKA1     Misconduct - Pattern of misconduct (with admin discharge board)
 HKA1              Misconduct - Pattern of misconduct (admin discharge board required
 but waived)

Characterization of service is written “HONORABLE”, “UNDER HONORABLE CONDITIONS (GENERAL)” or “UNDER OTHER THAN HONORABLE CONDITIONS” ”(See page 1-37 of MCO P1900.16C Ch 4, effective 29 Jul 87. Changes 5, and 6 which were issued before Change 4 was distributed are not applicable.)

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

[From Applicant's statement]
 1. My discharge was inequitable because it was based on behavior, which should have altered the Corp to an identifiable and treatable psychological condition. The acts or incidences leading to my discharge could probably have been avoided had I received proper medical and psychiatric treatment and the available medications. This is demonstrated by my accomplishments and satisfactory conduct since the condition has been properly diagnosed and treated.

2. My record of NJP's indicated only isolated and minor offenses. My record on UAs indicated only minor and isolated offenses. I received two NPs while in the Marine Corp. The first one was for unauthorized absence which did not exceed three (3) hours. My sister and her family were coming to visit for a long weekend, so I asked Sargent G_ if I could leave early and he said "no". Later Sargent G_ was relieved by Sargent G_, so I asked Sargent G_ if I could leave early and he said "yes". When sargeant G_ found out about it, he wrote me up for an unauthorized absence even though Sargeant G_ stated that he gave me permission. The second NJP I received was for not wearing a helmet while riding my motorcycle off base. I was stationed in California where state law did not require that a helmet be worn. Helmets were required on base, but to my knowledge, then and now there was not order to wear them off base.

[From civilian legal counsel's statement]
3. Discharge was unequitable because of behavior that was influenced by a medical condition that was not properly diagnosed until years after discharge.

4. Post-service conduct support the claim that with proper counseling and medical treatment, the behavior could have been remedied (First medical diagnosis was six (6) years after discharge).


 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Authorization for Medical Information as witnessed by Guin, Bouldin & Alexander
Attorneys dated 030303
AMI Transcript with cover letter dated 021226 (3 pages)
AMI Certificate of Completion for 80 Continuing Education Units dated 021217
Riverbend Center of Mental Health records (records released 020516) (21 pages)
Psychological evaluation dated 020208 (8 pages)
DSM-III-R §314.01, "Attention Deficit Hyperactivity Disorder" (5 pages)
Letter from Sheriff, Lauderdale County, Alabama dated 010619
Letter from Chief Deputy Sheriff, Lauderdale County, Alabama dated 010619
Letter from Circuit Court Clerk, Lauderdale County, Alabama dated 010619
Letter from 11th Judicial Circuit Court Judge, Lauderdale County, Alabama
dated 010619
Letter from District Attorney, Lauderdale County, Alabama dated 010619
Letter from Chief Assistant District Attorney, Lauderdale County, Alabama
dated 000619
Letter from Judge of Probate, Lauderdale County, Alabama dated 0106191
Letter from Director, Lauderdale County Work Release dated 010619
Letter from Administrator, Lauderdale Detention Center dated 010619
Transcript from University of North America dated 980310
Certificate of commendation from Northwest Shoals Junior College (Fall 1994)
Certificate of completion for 80 hour Jail management course dated 990813
 Times Daily newspaper article "Freight Trains in your Brain" dated 941124

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                850723 - 850903  COG

 Period of Service Under Review :
Date of Enlistment: 850904               Date of Discharge: 880705

 Length of Service (years, months, days):

         Active: 02 10 02
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 76

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.0 (7)                       Conduct: 3.8 (7)

 Military Decorations: None

 Unit/Campaign/Service Awards: Letter of Appreciation (3)

 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 :

860224:  Psychological Consultation by Medical Service Corps clinical psycholo-gist at clinic aboard NAS Memphis, TN.
         Pertinent Past History: [Applicant] is experiencing significant academic difficulty i.e., not comprehending material, 2 weeks behind in the course and has been accused of not putting forth maximum effort to achieve. Diagnostic interview in corroboration with psychological testing reveals a characterologically impaired situationally depressed male...During times of academic stress he tends to exhibit excessive self pity and rage resulting in erratic thinking and thoughts of self destruction.
         Diagnosis: Adjustment Disorder with mixed emotional features in a passive aggressive/dependent personality organization.
         Recommendation: 1. Not amenable to psychotherapy due to nature of character pathology. 2. Formal command level counseling and Page 11 entry. 3. If he continues to threaten suicide or behave in an unmilitary manner then consider administrative discharge due to unsuitability.

860305:  Counseled for deficiencies in performance and conduct (Violent thoughts, suicidal ideations, and vegetative signs of depression). Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

870620:  Medical Record Entry: Applicant seen by Medical Service Corps psychologist while stationed at Twentynine Palms, CA per command request. Recommendation from psychologist was to administratively discharge Applicant due to unsuitability if he continued to behave in an unmilitary manner. Follow-up plan was for psychometric screening.

 870724:  NJP for violation of UCMJ Article 86:
 Specification: Failed to be at appointed place of duty at 0731 on 870605, 870606, 870607, and 870608.
Violation of UCMJ Article 108:
Specification: Destroyed the wall in the guard shack and threw items around in the guard shack at 0710 on 870703.
Awarded: restriction for 30 days, reduction to PFC. Restriction suspended for 6 months. Not appealed.
871111:  Counseled for deficiencies in performance and conduct (Poor performance by failing the PFT; substandard personal appearance at a daily inspection). Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
871123:  NJP for violation of UCMJ Article 89:
         Specification: Disrespect towards a commissioned officer.
         Award: restriction for 30 days and extra duty for 14 days, written reprimand. Not appealed.
871214:  Counseled for deficiencies in performance and conduct (Disrespect toward a commissioned officer by using negative vocal mannerisms). Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
880609:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.
880609:  Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27(b), elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

880609:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct. The factual basis for this recommendation was a pattern of misconduct.

880614:  SJA review determined the case sufficient in law and fact.

880617:  GCMCA (Commanding General, Marine Corps Air Ground Combat Center, Twentynine Palms, CA) directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

011218:  NDRB documentary record review Docket Number MD01-00983 conducted. Determination: discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 880705 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 review of the applicant’s service record and other evidence presented to the Board, in conjunction with consideration of the factors listed in paragraph 9.3 of references (D and E), the Board determined relief is warranted under equitable grounds even though the discharge was determined to have been otherwise equitable and proper at the time of issuance.

At the personal appearance board, the Applicant provided compelling clinical evidence he suffers from a diagnosed clinical disorder not diagnosed while on active duty. While this Board cannot determine that the disorder existed while on active duty, and that such disorder was responsible for his misconduct, the Applicant stated he understood some of his past behaviors once properly diagnosed in 1994, 6 years after discharge. There is no evidence to substantiate that this condition existed while on active duty, but the Board believed, after reviewing all the available information, it must have existed and probably was the genesis of the misconduct the discharge was based on, thus probably improper. The Board conceded that had the Applicant been diagnosed while on active duty with this disorder, he would possibly have received another type and characterization of discharge. The Board also recognized the Applicant’s academic accomplishments, professional achievements, community service, and overall good citizenship, since being discharged, were, in large part, a result of proper diagnosis of the disorder and subsequent treatment. Thus, the Board, considering the Applicant’s post-service diagnosed disorder and extensive post-service accomplishments, voted to upgrade the characterization of discharge and to change the reason for discharge. Relief is granted.


 Pertinent Regulation/Law (at time of discharge)

 A. Paragraph 6210, MISCONDUCT , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16C), Change 4, effective 29 Jul 87 until 26 Jun 89.

 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 UCMJ Article 89, Disrespect toward a superior 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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