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USMC | DRB | 2003_Marine | MD03-00423
Original file (MD03-00423.rtf) Auto-classification: Denied


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

ex-PFC, USMC
Docket No. MD03-00423

Applicant’s Request
The application for discharge review was received on 20030114. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a documentary record review. The Applicant listed a private representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040415. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB. 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, as stated

 Applicant’s issues, as stated on the application:

1. “I have been diagnosed as being schizoaffective and this condition may have existed during my enlistment. I was never offered counseling or a pshycological evaluation while in the service. I was unaware of my conditions until recently.”

Additional issues submitted by Applicant’s representative (private representative):

2. “Mr. H_ (Applicant) was discharged 30 days short of completing his 4 years of enlisted service.”

3. “Mr. H_’s (Applicant’s) discharge was due to being “written up” 4 times (Chapter 11). During his enlistment with the Marines, Mr. H (Applicant) was not offered psychological counseling, therapy not anger management therapy. Also, at the time of is enlistment, Mr. H_ (Applicant) was unaware that he was suffering from mental illness (see Attached medical records).”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Thirteen pages of medical records
Applicant’s certification of military service, issued by October 7, 2002
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                910913 - 911201  COG

 Period of Service Under Review :
Date of Enlistment: 911202               Date of Discharge: 951102

 Length of Service (years, months, days):

         Active: 03 11 01
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 10 GED           AFQT: 62

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.0 (9)                       Conduct: 3.8 (9)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, NUC, OSSR, SSDR

 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. 6210.3.

 Chronological Listing of Significant Service Events :

930226:  NJP for violation of UCMJ, Article 113:
 Specification: Found sleeping on post on 0330, 930222.
Violation of UCMJ, Article 92:
Specification: Disobeyed 11 General Orders by sleeping on post on 0330, 930222.
Awarded forfeiture of $214.00 per month for 1 month, restriction and extra duties for 14 days. Not appealed.
930329:  Counseled for deficiencies in performance and conduct. [Maturity, initiative, and discipline.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
931015:  Counseled for deficiencies in performance and conduct. [Frequent involvement with military/civilian authorities and minor incidents prejudicial to good order and discipline.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
931022:  NJP for violation of UCMJ, Article 91:
 Specification: Disrespectful to an NCO by saying “Fuck you.”
Awarded forfeiture of $213.00 per month for 1 month, restriction and extra duties for 14 days. Forfeiture suspended for 6 months. Not appealed.
940504:  NJP for violation of UCMJ, Article 86:
 Specification: Unauthorized absence from 0530 to 0640, 940426.
Awarded correctional custody for 7 days. Not appealed.
950118:  Counseled for deficiencies in performance and conduct. [Family care plan.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
950209:  Counseled for deficiencies in performance and conduct. [Unauthorized absence and failure to perform your duties as an AMMOMAN/Driver in Heavy Weapons Platoon. Specifically, you were UA from 0630 until 1045, 950112 and then brought your two year old son into the barracks because you failed to arrange adequate child/care for him.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
950302:  NJP for violation of UCMJ, Article 91:
 Specification: Displaying insubordinate conduct when he was ordered to display his gear for inspection on 950216, by saying to Cpl “If you want to inspect my gear, take it out yourself.”
Violation of UCMJ, Article 90:
Specification: Refused to go on a battalion forced march on 0700, 950216.
Awarded forfeiture of $478.00 per month for 2 months (1 month suspended for 3 months), reduction to PFC. Appealed (date not found in service record). Appeal denied 950501.
950306:  Counseled for deficiencies in performance and conduct. [Failure to develop a family care plan in the 60 days provided in accordance with Marine Corps Order 1740.13A.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
950614:  Counseled for deficiencies in performance and conduct. [Pattern of misconduct, prejudicial to good order and discipline.] Applicant advised of being processed for administrative separation.
950628:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct. In addition, your failure to provide a family care plan for your dependent son makes you eligible for separation due to parenthood.
950628:  Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
950628:  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 your past military record.

951006:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to a pattern of misconduct, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

951026:  SJA review determined the case sufficient in law and fact.

961027:  GCMCA [Commanding General, 2d Marine Division, MarForLant] 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 19951102 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 1-3. 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. The Applicant’s service was marred by award of nonjudicial punishment (NJP) on four occasions 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 disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for an honorable characterization of service. The Applicant’s length of service does not mitigate his misconduct. The evidence of record and documentation provided by the Applicant does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. 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 inequity must have existed during the period of enlistment in question. No such error or inequity is evident 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 18 Aug 95 until 30 Jan 97.

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 90, disobey a lawful order from a commissioned officer; Article 91, disrespect to a NCO; Article 92, disobey a lawful order; and Article 113, sleeping on post.
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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