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USMC | DRB | 2002_Marine | MD02-01177
Original file (MD02-01177.rtf) Auto-classification: Denied


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

ex-Cpl, USMC
Docket No. MD02-01177

Applicant’s Request
The application for discharge review, received 020812, requested that the characterization of service on the discharge be changed to general/under honorable conditions. 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 030612. 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 – Minor disciplinary infractions (admin discharge board required but waived), authority: MARCORSEPMAN Par. 6210.2.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues and explanation, as submitted

 Dear DRB,

The following issues are the reason I believe my discharge should be upgraded. If you disagree, please explain in detail why you disagree. The presumption of regularity that might normally permit you to assume that the service acted correctly in characterizing my service as less than honorable does not apply to my case because of the evidence I am submitting.

1. Clemency is warranted because it is an injustice for me to continue to suffer the adverse consequences of a bad discharge.

I did receive an Honorable Discharge before my second enlistment, but because I did not have broken service, it is as if that discharge does not exist. A person who was Honorably Discharged then spent time outside of the Military, enlisted again but then received an other-than-honorable discharge may still benefit from the Honorable Discharge from their first enlistment. I feel that this is an injustice to me. It is as if I am being punished for making the decision to remain on Active Duty.

2. My average proficiency and conduct ratings/marks were good.

My average proficiency/conduct marks in-service were 4.5/4.3 (please see Pertinent pages from Service Records)

3. I received awards and decorations.

I received Good Conduct Medal(first and second award), Sea Service Deployment Ribbon.

4. My record of promotions shows that I was generally a good Service Member.
 a. Meritorious Promotion to Lance Corporal/E-3
b. Meritorious Promotion to Corporal/E-4
c. Attained rank of Sergeant/E-5
My promotions to Lance Corporal/E-3 and Corporal/E-4(NCO) were both Meritorious and I obtained the rank of Sergeant/E-5. None indicating that I was not a valued service member.

5. I received an Honorable Discharge (but without broken-service) upon reenlistment.

As previously stated in number 1, I did receive an Honorable Discharge upon my reenlistment.

6. Was recommended for reenlistment with bonus.

Not only was I recommended for reenlistment, but, I was awarded a $20,000 bonus for doing so. Again, this was no indication that I was anything other than a valued service member.

7. I have been a good citizen since discharge.

. I have been a good and productive citizen since my discharge and have included a Personal Character Reference from the Mayor of my lifelong hometown and present residence.

8. My record of NJPs/Article 15s indicate only minor offenses.

I received only two NJPs in my nearly 8 years of service.

9. I had no Court-Martial.

I had no Court-Martial during either of my enlistments.

10. I had no record of UA/AWOL.

I had no Unauthorized Absences during either of my enlistments.

11. There were other acts of merit.

At the time of my discharge I was serving as the Battery Training NCO, I was a Squad Leader in my Platoon. I was an Instructor at an MOS producing school (Shore Fire Control Party Man, NAB, Little Creek, Va.) I completed NCO school at Quantico, Va. and received the highest rating for Techniques of Military Instruction in my class. I participated in Military/Community Relations program tutoring school children in Virginia Beach, VA. I I completed 10 Marine Corps Institute courses. I attended and completed the Shore Fire Control Party school in Subic Bay,PI, and the Aircraft Hazardous Awareness(Fleet Aviation Specialized Ops) at the Naval Air Station in Norfolk, Va. . Given "SECRET" security clrnc.

12. My psychiatric/mental/emotional problems of Manic/Depressive (Bi-polar Disorder) were continuously misdiagnosed as alcoholism.

Each time I was referred/sent to a Substance Abuse Counselor or other psychiatric care professional, I tried to explain that my problem was not alcoholism, although at the time I could not accurately diagnose myself. After discharge I went into therapy and found that my problem was not alcoholism, that alcohol was a way of "self medicating". My emotional/mental/psychiatric problem is Manic-Depressive(Bi-Polar Disorder) and is treatable through medical means which the Military Medical Personnel said my problem was not. Since a successful means of treatment has been established I do not drink or commit acts of violence. Alcoholic’s Anonymous or any other Chemical Dependency ARE NOT part of my treatment plans (as recommended and misdiagnosed by the military). I am medicated with an anti-depressant called Celexa and my psychiatrists name is:

Dr. S_
(address and telephone number deleted)

As a result of continued misdiagnosis by Military Medical and Psychiatric personnel, I was never afforded or received the appropriate counseling or medication to treat my disorder. The proper diagnosis and treatment could have and by all indications would have altered the course of my Military Service.

In addition, I did complete the 6 year obligation that I had to serve. And, as you can see by the evidence I have submitted and by a complete review of my records, did so with every intention and within my abilities to be technically and tactically proficient Marine.

I do hope the board will give me every reasonable consideration and will upgrade my discharge to reflect my primarily honorable service and afford to me all the rights and privileges that I do not have with this undesirable discharge.

Thank you.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Letter of introduction, dated April 26, 2002
Letter of appreciation, dated March 27, 1997
Thank you letter, dated November 25, 1997
Certificate of appreciation, dated December 3, 1988
Five pages from Applicant's service record

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR(J)                811125 - 811227  COG
         Active: USMC              811228 - 850808  HON

 Period of Service Under Review :
Date of Enlistment: 850809               Date of Discharge: 890526

 Length of Service (years, months, days):

         Active: 03 09 18
         Inactive: None

 Age at Entry: 23                          Years Contracted: 6

 Education Level: 12                        AFQT: 61

 Highest Rank: Sgt

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.4 (8)                       Conduct: 4.2 (8)

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR, Letter of Appreciation (2), GCM with 1 star

 Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct-Minor disciplinary infractions (admin discharge board required but waived), authority: MARCORSEPMAN Par. 6210.2.

 Chronological Listing of Significant Service Events :

851015:  Counseled for deficiencies in performance and conduct. [Alleged spouse abuse.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

 851122:  NJP for violation of UCMJ, Article 86:
 Specification: Fail to go at time prescribed to appointed place of duty 0700, 851115, to wit: the pullup bars behind building 3504.
Violation of UCMJ, Article 134:
Specification: Cheat on physical test on 851115, to wit: entered the safety vehicle before the half way point and traveled about one half mile before he departed the vehicle and continued the course, kept his score he received.
Awarded forfeiture of $238.00 per month for 2 month, restriction and extra duties for 14 days. Forfeiture suspended for 60 days. Not appealed.
870623:  Counseled for deficiencies in performance and conduct. [Irresponsible use of alcohol while on liberty.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

890410:  CAAC evaluation: Alcohol dependence, continuous.

 890418:  NJP for violation of UCMJ, Article 116:
 Specification: Participated in a breach of peace by fighting in the house.
Violation of UCMJ, Article 128:
Specification: Assaulted wife by physically choking her on 1750, Apr89.
Awarded forfeiture of $541.00 per month for 2 months, restriction and extra duties for 45 days, reduction to Cpl. Not appealed.
890418:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions and commission of a serious offense.
890418:  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.

890424:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions and commission of a serious offense. The factual basis for this recommendation was your 2 page eleven entries and your 2 nonjudicial punishments.

890429:  Applicant evaluated and found to be alcohol dependent.

890504:  SJA review determined the case sufficient in law and fact.

890505:  GCMCA [Commanding General, 1 st Marine Expeditionary Brigade] 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 890526 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).

 Issues 1-6 and 8-12: 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. While he may feel that his mental illness was a contributing factor, it does not mitigate the Applicant’s disobedience of the orders and directives that regulate good order and discipline in the Marine Corps, demonstrating he was unsuitable for further service. Furthermore, the Board disagrees with the Applicant’s assertion that his overall service record warrants a general (under honorable) discharge. A characterization of service of under other than honorable conditions is warranted when the member’s conduct constitutes a significant departure of that expected of a Marine. It must be noted that most Marines serve honorably and well. In fairness to those Marines, commanders and separation authorities are tasked to ensure that undeserving Marines receive no higher characterization than is due. Despite the Applicant’s above average evaluation marks and meritorious promotions, his service record is marred by counseling and non-judicial punishment (NJP) on four separate occasions for alcohol abuse and spousal abuse, offenses triable by court-martial. An upgrade to general (under honorable) conditions would be inappropriate. Relief denied. However, the NDRB did note an administrative error on the original DD Form 214 and corrected it to reflect the Applicant’s previous four years of honorable service.

Issue 7: 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, a positive employment record, documentation of community service, certification of non-involvement with civil authorities and credible evidence that the Applicant is living an alcohol free life style, are examples of verifiable documents that should be provided to receive consideration for relief, based on post-service conduct. At this time, the Applicant has not provided sufficient verifiable documentation of good character and conduct to mitigate his misconduct while on active duty. Relief denied.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge. The Applicant can provide additional documentation to support any claims of post-service accomplishments at that time. 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 P1900.16C, 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 the UCMJ, Article [ e.g., Article 86, unauthorized absence for more than 30 days].
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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