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NAVY | DRB | 2004 Marine | MD04-00102
Original file (MD04-00102.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD04-00102

Applicant’s Request
The application for discharge review was received on 20031021. The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions and the reason for the discharge be changed to medical. The Applicant requests a documentary record review. The Applicant listed the Disabled American Veterans as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040617. 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 and narrative reason 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. Diagnosis from present psychiatrist seeing me

2. Document from Marine Corps Medical record stating scheduled psychiatric evaluation which I never received the psychiatric evaluation prior to discharge, and subsequent psychiatric evaluation has validated the doctor’s concerns regarding my mental health.

3. Statement and referral from social worker from Personal Services Division

4. Statement from Navy doctor seen while enlisted”

Additional issues submitted by Applicant’s counsel/representative (DISABLED AMERICAN VETERANS):

 5. “Dear Chairperson:

After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of evidence assembled for review, we continue to note the contention of the appellant in his request for a discharge upgrade of his current Other Than Honorable Conditions discharge to that of General Under Honorable Conditions with the narrative reason for separation changed from misconduct to that of physical disability.

The FSM served on active service from April 30, 1998 to October 27, 2000 at which time he was discharged due to misconduct.

The FSM contends the current discharge is improper because he was referred to a psychiatric evaluation and treatment, but never had the chance to complete this evaluation or treatment and therefore submits evidence of disability from his private doctor.

Additionally, if one was to review the past statement of events given by the appellant, undated and documented as Enclosure 6 and the narrative of UCMJ events and charges, they would see a pattern of improprieties by the Gunnery Sergeant that served as the first line supervisor.

This creates a need for a review of the application of the standard, for the Board to determine that the applicant’s discharge was improper. The Board will determine which reason for discharge should have been assigned based upon the facts and circumstances before the Board, including the service regulations governing the reasons for discharge at that time, to determine whether relief is warranted. See, SECNAVIST 5420.174 (c), Par. (f) (1).

In continuance, the FSM’s case worker LSW M_ has submitted documentation of a psychiatric disability elaborating that the multiple emotional problems stemming from the current stressors in service along with those of the past would cause the FSM to lash out with overwhelming feelings of anxiety, depression and at time isolate himself.

We maintain that such symptoms would effect the FSM’s judgment, leading him to make poor decisions, such as missing formation and maintain inappropriate behavior to the point of misconduct events like disobeying lawful orders, unauthorized absences, or maintaining a pet in the barracks.

As the representative, we ask that consideration be given to equitable relief, as this is a matter that involves a determination whether a discharge should be changed under the equity standards, to include any issue upon which the applicant submits to the Board’s discretionary authority, under SECNAVIST 5420.174C.

We ask for the Board’s careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision. These issues do not supersede any issues previously submitted by the applicant .”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214
Diagnosis chit
Mental evaluation statement from Capt. R. H_, USN
Treatment letter from M_ M_, LSW
One page from Applicant’s medical record

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: None

 Period of Service Under Review :
Date of Enlistment: 980430               Date of Discharge: 001027

 Length of Service (years, months, days):

         Active: 02 05 28
         Inactive: None

 Age at Entry: 19                          Years Contracted: 5

Education Level: 12                        AFQT: 75

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.8 (7)                       Conduct: 3.4 (7)

 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. 6210.3.

 Chronological Listing of Significant Service Events :

990629:  NJP for violation of UCMJ, Article 92: Failure to obey lawful order; violation of UCMJ, Article 134: Disorderly conduct, drunkenness.
 Awarded forfeiture of $537.00 per month for 2 months, restriction and extra duties for 45 days, reduction to PFC. Not appealed.
990820:  NJP for violation of UCMJ, Article 86: UA; Article 92 (3 specs): Failure to obey lawful order.
 Awarded forfeiture of $479.00 per month for 2 months, restriction and extra duties for 45 days, reduction to Pvt (reduction suspended for 6 months). Not appealed.
000104:  Vacate suspended sentence from NJP dated 990820.

 000418:  Counseled for deficiencies in performance and conduct. [Frequent violations of the UCMJ.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
001006:  NJP for violation of UCMJ, Article 86: Failed to go to appointed place of duty on 000914.
 Awarded reduction to Pvt, restriction for 60 days. Not appealed.
001006:  Counseled for deficiencies in performance and conduct. [Violation of a general regulation, by wrongfully maintaining a kitten in his BEQ room.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
001012:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by three NJPs and page 11 entries.
001018:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
001018:  Counseled for deficiencies in performance and conduct. [Failing to report for restriction muster on 001007, 001013, and four occasions on 001015.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
001018:  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 numerous violations of the UCMJ.

 001020:  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.

001025:  SJA review determined the case sufficient in law and fact.

001026:  GCMCA [CG, MCB Hawaii] 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 20001027 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).

 Issue 1. 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 three 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 or under honorable (general) characterization of service. Administrative separation for misconduct takes precedence over a possible discharge for other reasons. No narrative reason other than a pattern of misconduct more clearly describes the circumstances surrounding the Applicant’s processing for administrative separation. 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 31 Jan 97 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 86, unauthorized absence; Article 92, disobey a lawful order; and Article 134, disorderly conduct.
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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