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NAVY | DRB | 2004 Marine | MD04-00480
Original file (MD04-00480.rtf) Auto-classification: Denied


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



ex-PFC, USMC
Docket No. MD04-00480

Applicant’s Request
The application for discharge review was received on 20040128. The Applicant requested the characterization of service received at the time of discharge be changed to honorable. The Applicant requested a documentary record review. The Applicant listed Swords to Plowshares Veterans Rights Org, Inc. as his representative on his DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040817. 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
The Applicant differed submitting issues in favor of his representative.

Issues submitted by Applicant’s counsel/representative ( Swords to Plowshares Veterans Rights Org, Inc.):
1. “ Discussion:

 This former Marine’s medical records include numerous psychiatric entries as well as actual hospitalizations. A “personality disorder” diagnosis was made and the applicant was finally issued an OTH discharge based on NJP's.
The applicant is a combat veteran of Liberia, Kuwait and Iraq. After review of his military medical and admin records and psychological testing, he has been found to be 100% service connected disabled by the Department of Veterans Affairs. (Attachments 1,2,3.). This is not subject to dispute.
His disciplinary record is relatively minor. It includes no drug abuse, no long term u.a. etc. and represents a time frame close to his psychiatric medivac and observation in service.
The applicant served in combat well. He developed serious mental illness while in service which was not properly diagnosed- let alone treated. The evidence submitted is self- explanatory and after even cursory review, should compel the conclusion that an upgrade of discharge is warranted .”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of Psychological report from Dr. T_ A_, 10-10-02 (6 pages)
Copy of Department of Veterans Affairs Character of Service Determination
Decision dated 8-14-03 (Rating Decision, 4 pages)
 Copy of Department of Veterans Affairs Rating Decision granting 100% disability
compensation for service connected Schizophrenia And Post Traumatic Stress
Disorder, dated 12-18-03 (Rating Decision, 5 pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active:                                     None                       HON
         Inactive: USMCR (J)                        890526 - 890530  COG
Period of Service Under Review :
Date of Enlistment: 890531               Date of Discharge: 920710

 Length of Service (years, months, days):
         Active: 03 01 10
          Inactive: None
Age at Entry: 20                          Years Contracted: 4

 Education Level: 12                        AFQT: 59
Highest Rank: LCpl (MOS: 0311, Rifleman)

 Final Enlisted Performance Evaluation Averages (number of marks):
Proficiency: 4.0 (9)              Conduct: 4.0 (9)
Military Decorations: CAR

 Unit/Campaign/Service Awards: NDSM, SSDR (w/2 stars), KLM, MCEM,
SASM (w/2stars)

Days of Unauthorized Absence: None
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 :

891113:  NJP for violation of UCMJ, Article 86: UA from appointed place of duty … until he was apprehended …
 Awd forf of $100.00 per month for 1 month, and 14 days restriction and extra duties. Not appealed.
891114:  Counseled for deficiencies in performance and conduct. [Substandard performance and conduct, and attitude toward the Marine Corps.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
891128:  Counseled for deficiencies in performance and conduct. [Violation of the UCMJ, which shows contempt for the discipline which is required of all Marines.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
891128:  NJP for violation of UCMJ, Article 86: UA … from Marine Training company; violation of UCMJ Article 134: Breaking restriction; violation of UCMJ Article 92: Disobeyed lawful order …
         Awd forf of $182.00 per month for 1 month. Not appealed.
911210:  Counseled for deficiencies in performance and conduct. [Inability to modify my conduct to conform with the spirit and intent of orders and the military way of life.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
920211:  NJP for violation of UCMJ, Article 86: … failed to go at the appointed time prescribed to appointed place of duty…; violation of UCMJ Article 134: … willfully and wrongfully exposed in an indecent manner his penis.
         Awd forf of $225.00 per month for 1 month, and 14 days restriction and extra duty. 14 days restriction and extra duty susp for 6 mos. Not appealed.
920507:  NJP for violation of UCMJ, Article 92: violated BO 1700.6G by consuming alcohol in the bks.
         Awd red to E-2, and forf of $200.00 per month for 2 months. Not appealed.

920605:  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) four nonjudicial punishments which were conducted on 13 November 1989, 28 November 1989, 11 February 1992, and 7 May 1992.”

920605:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.
920605:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions. The factual basis for this recommendation was the Applicant’s “four nonjudicial punishments which were conducted on 13 November 1989, 28 November 1989, 11 February 1992, and 7 May 1992.”

920622:  SJA review determined the case sufficient in law and fact.

 920625:  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 19920710 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: The Applicant’s representative contends the Applicant served the United States well; “(h)is disciplinary record is relatively minor,” and he is entitled to an upgrade. When a Marine’s service has been honest and faithful, it is appropriate to characterize that service as honorable. An Under Other Than Honorable Conditions 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. T he Applicant’s service was marred by four nonjudicial punishment proceedings for violations of UCMJ Articles 86, 92 and 134 over the three year span of his enlistment. 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 United States Marine Corps and falls far short of that required for an upgrade of his characterization of service. No other reason for separation could more clearly describe why the applicant was discharged. An upgrade to honorable would be inappropriate. Relief denied.
There is no requirement or law that grants recharacterization based solely on the issue of obtaining Veteran’s benefits. This issue does not serve to provide a foundation upon which the Board can grant relief. Additionally, the record does not support the representative’s contention that the Applicant “was not properly diagnosed- let alone treated.” The Applicant’s representative, the Swords to Plowshares Veterans Rights Org, Inc. , argues that Applicant’s misdiagnosed personality disorder sufficiently mitigated his misconduct to warrant an upgrade in his characterization of service. There is no evidence in the record to suggest the Applicant was not responsible for his misconduct or that he should not be held accountable for his actions. In the Applicant’s case, the Board discovered no impropriety or inequity in his discharge. Therefore, the NDRB considers the Applicant’s discharge proper and equitable. Relief is therefore denied.
The documentation and statements provided by the Applicant’s representative were not sufficient to overturn the presumption that the Applicant was properly diagnosed with a personality disorder by a competent medical authority. The evidence reviewed did not persuade the Board this diagnosis was improper or inequitable. The Applicant’s “ Drug/Alcohol History ” indicates he engaged in polysubstance abuse, including PCP use (reported to have been used “ten to eleven” times), since he was discharged. The evidence of schizophrenic symptoms in the additional documentation provided by the Applicant is consistent with polysubstance abuse and PCP use in particular. 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, Unauthorized absence; Article 92, Failure to obey order or regulation ; Article 134, Breaking restriction and Indecent exposure.
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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