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NAVY | DRB | 2004 Marine | MD04-00167
Original file (MD04-00167.rtf) Auto-classification: Denied


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

ex-PVT, USMC
Docket No. MD04-00167

Applicant’s Request
The application for discharge review was received on 20031029. 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 did not list any representative on the DD Form 293. Subsequent to the application, the Applicant obtained representation by the Disabled American Veterans.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040628. 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 – Minor disciplinary infractions (administrative discharge board required but waived), authority: MARCORSEPMAN Par. 6210.2.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

Issue 1: “I have had multiple seizures over the years, Find it hard to hold a perminant or regular job, find it hard to sleep sometimes, find myself using alcohol and certain sleep aids, finding myself angry or violent very much of the times, finding it very hard to be around people sometimes, always hyper and I have common skin rashes that gotton worse over the years (all) possible symptoms of past traumatic stress disorder.”

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

Issue 2: “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 Under Other Than Honorable discharge (OTH) to that of Honorable.The FSM served on active service from June 25, 1990 to September 2, 1992 at which time he was discharged due to Misconduct-Minor Disciplinary Infractions.The FSM request a records review and upgrade of discharge stating that difficulties with a psychiatric disability which he believes was incurred due to his participation in the Gulf War caused him to act without proper judgment leading to each of the disciplinary infractions.The record reflects the FSM served in the Persian Gulf from January 17, 1991 to April 8, 1991 and awarded the Combat Action Ribbon, Kuwaiti Liberation Medal, and Southwest Asia Service Medal with 2 service stars.Although no psychiatric disabilities were treated by the military the FSM was seen for alcohol abuse which could have been a form of self medication to depress the symptoms. Also the infractions incurred started after his return from the Persian Gulf. Based on the above, and 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, as the evidentiary record does lend plausibility to the FSM’s contentions.As a combat veteran, with good service/proficiency reports prior to deployment making a plausible claim for an upgrade that consideration should be given to a General Discharge Under Honorable Conditions, as this will allow the FSM to seek treatment through the Department of Veterans Affairs Health Care system.We ask for the Board’s careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision.Respectfully,”

 Applicant marked the box "I PREVIOUSLY SUBMITTED AN APPLICATION ON 7-19-03 AND AM COMPLETING THIS FORM IN ORDER TO SUBMIT ASSITIONAL ISSUES." No evidence of this transaction was found in the record.
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
2 Copies of DD Form 214 (Member 4)
2 Copies of DD Form 214 (Member 1)
Note from Applicant, undated

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              None                       HON
         Inactive: USMCR (J)               900625 - 900624  COG

 Period of Service Under Review :
Date of Enlistment: 900625               Date of Discharge: 920902

 Length of Service (years, months, days):

Active: 02 02 07 (Lost time not include.)        Inactive: None

 Age at Entry: 19                          Years Contracted: 4

Education Level: 12                        AFQT: 47

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.1 (8)              Conduct: 3.5(8)

 Military Decorations: CAR

 Unit/Campaign/Service Awards: NDSM, SASM (w/1 star), KLM

Days of Unauthorized Absence: 910828 – 910829 (01)

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

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

 Chronological Listing of Significant Service Events :

911010:  NJP for violation of UCMJ, Article 86: on or about 0731, 910828 and did remain so until 2030, 910829, violation of UCMJ Article 108: on or about 910825 did willfully destroy government property by punching a window out in the barracks.
         Award: Forfeiture of $200 per month for 1 month, restriction and extra duty for 14 days. Not appealed.

911011:  Counseled for deficiencies in performance and conduct. [Deficient conduct and performance (UA/AWOL and destruction of government property)] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
911101:  NJP for violation of UCMJ, Article 91: did on or about 2115, 911022 (show) disrespect towards an NCO by making defamatory racial remarks, violation of UCMJ, Article 92 (2 specs):
 Specification 1: did on or about 2115, 911022 disobey an order by being intoxicated while on restriction.
Specification 2: did on or about 2115, 911022 disobeyed a lawful order by drinking in the barracks.
Awd red to E-2, forf of $422.00 per month for 2 months, and confined to Correctional Custody for 30 days. Appealed 911101.
911104   Appealed denied.

 920702:  Summary Court-Martial.
                   Charge I: violation of the UCMJ, Article 92 (2 specs).
 Specification 1: Having knowledge of a lawful order issued by MCO P1020.34 paragraph 1004.7a an order, which it was his duty to obey, did on or about 2300, 920627 fail to obey the same by wrongfully wearing an earring in his ear.
Specification 2: did on or about 2300, 920627 fail to give up his Military ID for verification.
          Finding: to Charge I and the specification 1 thereunder, guilty. To Charge I and the specification 2 thereunder, guilty
         Sentence: Awd red to Pvt/E-1, Forf of $523.00 per month for 1 month, and confinement for 30 days.
         CA action 920702: Sentence approved and ordered executed.
920806:          Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions as evidenced by the Applicant’s summary court-martial conviction on 2 July 1992 and his two nonjudicial punishments, which were conducted on 10 October 1991 and 1 November 1991.
920806:          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.

920806:  Commanding officer recommended discharge by reason of misconduct due to minor disciplinary infractions. The factual basis for this recommendation was the respondent’s summary court-martial conviction on 2 July 1992 and his two nonjudicial punishments, which were conducted on 10 October 1991 and 1 November 1991.

920812:  SJA review determined the case sufficient in law and fact.

920819:  GCMCA [Commanding General, 2d Marine Division] 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 19920902 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).

Issue 1 & 2: While we are sensitive to the plight of our combat veterans, the Board discovered no impropriety or inequity in the Applicant’s case and therefore considers his discharge proper and just . A characterization of service of under other than honorable conditions is warranted when the service member’s conduct constitutes a significant departure from that expected of a member of the U. S. Marine Corps. The record is devoid of any evidence that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. The Applicant’s service record is marred by award of nonjudicial punishment (NJP) on two separate occasions and a summary court-martial for being absent without leave, insubordinate, failing to obey orders and destruction of government property . The Applicant’s summary of service clearly reflects his disobedience of the orders and directives that regulate good order and discipline in the naval service, and demonstrated he was unsuitable for further service. An upgrade to honorable or general (under honorable conditions) would be inappropriate. Relief denied.
 
 T here 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, and certification of non-involvement with civil authorities, 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 P1900.16D), effective 27 Jun 89 until 17 Aug 95.

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, Absence without leave; Article 91, Insubordinate conduct , Article 92, Failure to obey order or regulation; Article 108, Destruction of government property.

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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