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NAVY | DRB | 2004 Marine | MD04-00293
Original file (MD04-00293.rtf) Auto-classification: Denied


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


ex-PFC, USMC
Docket No. MD04-00293

Applicant’s Request
The application for discharge review was received on 20031201. The Applicant requested the characterization of service received at the time of discharge be changed to general/under honorable conditions. The Applicant requested a documentary record review. The Applicant listed a Personal 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 20040812. 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. 6210.6.


PART I - APPLICANT’S ISSUES AND DOCUMENTATION


 Issues, as stated
Applicant’s issues, as stated on the application:
Issue 1: “I suffer from diagnosed mental illness, paranoria schizophrenia.”

 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 to General, Under Honorable Conditions.The FSM served on active service from 9/25/94 to 10/20/95 at which time he was discharged due to Involuntary Discharge (Board) (Misconduct) Serious Military/Civilian Offense.The FSM makes no specific contentions or conclusions. He requests a complete records review and consideration the supporting documentations submitted with the application. 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).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.Respectfully, ”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Character reference, dtd August 23, 03
Character reference, dtd August 21, 2003
 Character reference, undated
 Applicant’s DD Form 214
Post-service medical records (17 pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
          Inactive: USMCR (J)               931015 - 940530  COG
Period of Service Under Review :
Date of Enlistment: 940531               Date of Discharge: 951020

 Length of Service (years, months, days):

         Active: 01 04 20 (Lost time not included.)
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4
Education Level: 12                        AFQT: 44

 Highest Rank: PFC
Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.2 (4)                       Conduct: 4.0 (4)
Military Decorations: None

 Unit/Campaign/Service Awards: NDSR
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. 6210.6.
Chronological Listing of Significant Service Events :

950217:  Applicant in the hands of civil authorities. He was being held in Yuma County Adult Detention Center under $54,950.00 bond.


950510:  Applicant found guilty of theft (a class three felony) and burglary (a class four felony) in the Superior Court of the State of Arizona. He was incarcerated in Yuma County Jail for 30 days and placed on 108 months intensive probation and ordered to pay $17,700.00 in restitution.
950609:  Counseled for deficiencies in performance and conduct. [Applicant’s recent involvement with civil authorities.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
950727:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to the commission of a serious offense, that the misconduct warranted separation, and recommended discharge under other than honorable conditions. **
980808:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense. The factual basis for this recommendation was the Applicant’s admitted theft of $20,000.00 and the burglarizing of M_ RV Sales.

951002:  SJA review determined the case sufficient in law and fact.

 951010:  GCMCA [Commanding General, 3d Marine Aircraft wing] directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

 ** Parts of Applicant’s discharge package missing from service record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19951020 under other than honorable conditions for misconduct due to the commission of a serious offense (A). The Board presumed regularity in the conduct of governmental affairs (B). 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 (C and D).
Issue 1: The Board found that the Applicant’s age, education level, and test scores qualified him for enlistment. While he may feel his post service diagnosis of Schizophrenia, paranoid type was a factor contributing to his actions; there is no medical evidence in the record the Applicant suffered from a mental illness while in the service. Additionally, there is no indication on the Applicant’s enlistment physical annotating a pre-service history of mental illness or problems. The record clearly reflects his disregard for the requirements of military discipline and demonstrated that he was unfit for further service. The record is devoid of evidence the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.
Issue 2: The Applicant’s discharge characterization accurately reflects his service to his country. Normally, to permit relief, a procedural 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 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 P1900.16E), effective 18 Aug 95 until 30 Jan 97).

B. 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.

C. 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.

D. 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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