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NAVY | DRB | 2004 Marine | MD04-00353
Original file (MD04-00353.rtf) Auto-classification: Denied



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



ex-PFC, USMCR
Docket No. MD04-00353

Applicant’s Request
The application for discharge review was received on 20031218. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a documentary record discharge review. The Applicant did not list any representative on the DD Form 293. Subsequent to the application, the Applicant obtained representation from the Veterans of Foreign Wars.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041008. 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: GENERAL (UNDER HONORABLE CONDITIONS)/PERSONALITY DISORDER, authority: MARCORSEPMAN Par. 6203.3

PART I - APPLICANT’S ISSUES AND DOCUMENTATION


 Issues, as stated
Applicant’s issues, as stated on the application:

 “1. The charges were over zealous;
2. The charges were not accurate for what the veteran was accused of;
3. The veteran was misunderstood;

 4. The veteran was forced to perform duties that were aginst the psychiatrist’s recommendations;

5. The veteran has punished enough by NJP;

6. the veteran has sought to be released before the chain of command--but to no avil;

7. the veteran has had difficulty, because of the bad RE-4 code--this must be upgraded;

8. The veteran was treated unfairly, because of religious philosophy;

9. The veteran has respectfully requested that the General discharge be changed to an Honorable Discharge after six months and finaly the veteran prayer is for God’s speed. Amen.”

Additional issues submitted by Applicant’s representative (Veterans of Foreign Wars):

 10. “Applicant indicated above requested that Veterans of Foreign Wars act as counsel concerning his application. His records were reviewed on 09-09-04 and the following comments are hereby submitted.
We support the Applicant’s contentions that his discharge be upgraded.
We refer this case to the Board for their careful and compassionate consideration and request the Applicant’s discharge be reviewed for an upgraded discharge.”



Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Associate of General Studies in Psychology, dated May 7, 2003
Transcript from Southern University at Shreveport, September 26, 2003
 Applicant’s DD Form 214

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: 970331               Date of Discharge: 020626

 Length of Service (years, months, days):
         Active: 01 00 00
          Inactive: 04 03 26

 Age at Entry: 19                          Years Contracted: 8
Education Level: 12                        AFQT: 43

 Highest Rank: LCpl                         MOS : 0311
Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: NMF*                 Conduct: NMF
Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, AFRM
Days of Unauthorized Absence: None

 *No marks found in service record.
Character, Narrative Reason, and Authority of Discharge (at time of issuance):

GENERAL (UNDER HONORABLE CONDITIONS)/PERSONALITY DISORDER, authority: MARCORSEPMAN Par. 6203.3.

 Chronological Listing of Significant Service Events :

970528:  Enlistment contract into the USMCR documents acknowledgement of the requirement to participate in 48 scheduled drills and not less than 14 days of annual training per year for 6 years upon completion of initial active duty training.
970602:  Applicant reported to initial active duty for training.

 970823:  Applicant released from IADT, having served 2 months and 22 days active duty.
980603:  Applicant commenced IADT.

 980715:  Applicant released from IADT, having served 1 month 13 days active duty.
010115:  Applicant informed eligible but not recommended for promotion to Cpl for the Jan/Feb/Mar quarter because fail MBST.
010129:  Counseled for deficiencies in performance and conduct. [Failure of the annual MBST test.] Necessary corrective actions explained, sources of assistance provided.

 010313:  Applicant informed eligible but not recommended for promotion to Cpl for the April/May/June quarter because of MBST failure.
010615:  Applicant informed eligible but not recommended for promotion to Cpl for Jul/Aug/Sep quarter because of MBST failure.
011102:  Applicant activated and mobilized to Guantanamo Bay, Cuba in support of Operations Enduring Freedom.
011128:  Medical evaluation by a military psychiatrist concluded that the Applicant’s personality disorder was so severe that his ability to function effectively in the military environment was significantly impaired.
          AXIS I: None.
 AXIS II: Personality disorder, NOS with Schizotypal features.
AXIS III: history of encephalitis as a child.
011130:  U.S. Naval Hospital Guantanamo Bay, Cuba confinement physical.

 011205:  NJP for violation of UCMJ, Article 91 (2 specs):
 Specification 1: Disobeyed lawful order from Staff Sergeant on 011111, to lower his voice.
 Specification 2: Disobeyed lawful order from Staff Sergeant on 011111, to report to his office at 1700.
Violation of UCMJ, Article 117:
 Specification: Wrongfully use provoking words and gestures on 011111, to wit: “You can’t handle the fucking truth” and “You see that everyone else is scared to say what is on their minds, but I’m not. I will say what I feel” and gestures, to wit: Being within two feet with his hand raised and pointing his finger towards Staff Sergeant.
Violation of UCMJ, Article 134 (3 specs):
Specification 1: Wrongfully communicate to Staff Sergeant a threat to “Drive a truck through the Marine White House if he had to”, “It would be September 11 all over again” or words to that effect on 011130.
Specification 2: Wrongfully communicate to Sergeant and Corporal, a threat that “It will take 10 Marines to get me to the brig on 011130.
Specification 3: Wrongfully communicate to Sergeant, a threat that “Just like people in the tanks, they roll through and take everybody out, I will use every tactic necessary that the Marine Corps has taught me. I will never surrender and won’t give up my ground. I will win” or words to that effect on 011130.
Awarded reduction to E-2. Not appealed.
011205:  Counseled for deficiencies in performance and conduct. [Your recent NJP held on 011205 for violation of Articles 91, 117, 134 of the UCMJ.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
011205:  Applicant informed eligible but not recommended for promotion to Cpl for 3 months due to NJP held on 011205.

 011205:  Applicant admitted to civilian Psychiatric Ward, Shreveport: Medical evaluation by a military psychiatrist concluded that the Applicant’s personality disorder was so severe that his ability to function effectively in the military environment was significantly impaired.
          AXIS I: Adjustment disorder with mixed emotion and conduct. Severe personality schizotypal.
          AXIS II: Severe personality disorder with schizotypal features.
          AXIS III: History of varicelle encephalitis.
         AXIS IV: Unhappy and angry about the Marine Corps.
          AXIS V: GAF: 41.
011210:  Applicant discharged from Psychiatry Ward and returned to military control .

 020104:  Inspector-Instructor’s acknowledgement of rebuttal statements from Applicant.
020108:  Applicant notified of intended recommendation for discharge under honorable conditions (general) for the convenience of the government due to a personality disorder, based upon a diagnosed personality disorder as evidenced by psychiatric evaluation.
020129:  Applicant’s rebuttal to administrative separation.
020201:  Applicant advised of rights and having consulted 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.
undated:         Commanding Officer/Inspector-Instructor’s recommended discharge under honorable conditions (general) for the convenience of the government due to a personality disorder, based upon a diagnosed personality disorder as evidenced by psychological evaluation. The factual basis for this recommendation was on the 5 th day of December 2001, you were diagnosed as having a severe personality disorder.

020626:  SJA review determined the case sufficient in law and fact.
020626:  GCMCA [Commanding General, 4 th Marine Division, New Orleans, LA] directed the Applicant's discharge under honorable conditions (general) for convenience of the government due to a personality disorder.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20020626 with a general (under honorable conditions) for convenience of the government due to a personality disorder (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. The documentation and statements provided by the Applicant were not sufficient to overturn the presumption that the Applicant was properly diagnosed with a personality disorder. The Applicant was diagnosed with a personality disorder by a competent medical authority on 011205. The evidence reviewed did not persuade the Board that this diagnosis and subsequent administrative separation was improper or inequitable. Relief denied.

Issues 4, 6, 8, 10. The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and/or the reason for discharge if such change is warranted. After a through review of the record and the submissions of the Applicant, the Board found no evidence of impropriety or inequity in the Applicant’s discharge. Therefore, relief is denied.

Issue 5. When the service of a member of the U.S. Marine Corps has been honest and faithful, it is appropriate to characterize that service as honorable. A General discharge is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record. The Applicant’s service was marred by nonjudicial punishment proceedings for violations of Articles 91, 117 and 134 of the UCMJ. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Marine Corps and falls far short of that required for an upgrade of his characterization of service. Relief is not warranted.

Issue 7. Concerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reentry into the naval service or any other of the Armed Forces. The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy or Marine Corps. Reenlistment policy of the naval service is promulgated by the Commandant, United States Marine Corps, Code MMEA, 3280 Russell Road, Quantico, VA 22134. Neither a less than fully honorable discharge nor an unfavorable "RE" code is, in itself, a bar to reenlistment. A request for a waiver is normally done only during the processing of a formal application for enlistment through a recruiter.


Issue 9. 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. 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. After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that his discharge was appropriate and that his evidence of post-service conduct was found not to mitigate his conduct during service. 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. Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)
A. Paragraph 6203, CONVENIENCE OF THE GOVERNMENT, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 02 Sep 01 until Present.
B. Table 6-1, Guide for Characterization of Service, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 18 Aug 95 until Present.

 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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