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NAVY | DRB | 2004 Marine | MD04-00662
Original file (MD04-00662.rtf) Auto-classification: Denied


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


ex-LCpl, USMC
Docket No. MD04-00662

Applicant’s Request
The application for discharge review was received on 20040309. 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. In the acknowledgement letter, the Applicant was informed that he was approaching the 15-year point for review by this Board and was encouraged to attend a personal appearance hearing in the Washington D.C. area. Applicant did not respond.

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: UNDER HONORABLE CONDITIONS (GENERAL)/Misconduct - Minor disciplinary infractions (with administrative discharge board), authority: MARCORSEPMAN Par. 6210.2.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION


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

 1. “I had prior honorable discharges.”

2. “My ability to serve was impaired because of marital and family problems.”

3. “I should have received a medical discharge because I was not medically qualified to serve.”

4. “My average conduct and proficiency ratings were outstanding before assignment to MCLB, Albany, GA.”

5. “My record of Article 15’s indicate only monor offences.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR(J)                         780510 - 780607  COG
          Active: USMC                       780608 – 830307  HON      Rel ACDU
          Inactive: USMCR                    830308 –840509   HON
          Inactive: USMCR(J)                         860127 - 860206  COG
          Active: USMC                       860207 - 890223  HON
Period of Service Under Review :
Date of Enlistment: 890224               Date of Discharge: 911018

 Length of Service (years, months, days):
         Active: 02 07 25
          Inactive: None
Age at Entry: 28                          Years Contracted: 5

 Education Level: 12                        AFQT: 53
Highest Rank: Sgt                          MOS : 3044/0311

 Final Enlisted Performance Evaluation Averages (number of marks):
Proficiency: 4.2 (2)              Conduct: 2.9 (2)
Enlisted performance reports were available to the Board for review.
Military Decorations: None
Unit/Campaign/Service Awards: SSDR (2), LoC, CoA, GCM, NDSM, EBR

 Days of Unauthorized Absence: None
Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER HONORABLE CONDITIONS (GENERAL)/Misconduct-Minor disciplinary infractions (with administrative discharge board), authority: MARCORSEPMAN Par. 6210.2.



Chronological Listing of Significant Service Events :

890224:  Applicant reenlisted for 5 years.
900612:  NJP for violation of UCMJ, Article 86:
 Specification: Failed to go at time prescribed to appointed place of duty on 0800, 900516.
 Awarded forfeiture of $250.00 per month for 1 month, extra duties for 7 days. Forfeiture of $50.00 for 1 month and extra duty for 7 days suspended for 3 months. Not appealed.
900621:  Counseled for deficiencies in performance and conduct. [Indebtedness and the requirement to pay just debts in a timely and efficient manner. Allowing debts to become delinquent is both unprofessional and unthinkable. The current debt in question is to Kays Jewelers and is 7 months delinquent.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
900622:  Applicant’s statement to the Commanding Officer.

 900919:  Applicant to admitted to hospital. Provisional diagnosis: I. Suicidal ideations. 2. Depression. Plan: Commit psychiatric ward today.
900924:  Narrative Summary: Diagnoses: 1. Adjustment disorder, DNEPTE. 2. Personality disorder, not otherwise specified, DNEPTE. Applicant given 7 days of convalescent leave to continue medication and healing process. Applicant to return to full duty.
901003:  Applicant’s statement.

 901011:  NJP for violation of UCMJ, Article 86:
 Specification: Failed to go at the time prescribed to Battalion PFT Course at 0605, 900919.
 Awarded reduction to E-4. Not appealed.
901030:  Medical entry: Follow up. Symptoms of adjustment reaction have resolved. Personality issues remain. Discussed multiple life stressors. Impression: Personality disorder, severe. Potential for dangerousness to self remains. Recommendation: Strong consideration should be given to administrative separation of this Marine. His personality disorder is not treatable and his potential dangerousness to self make him a hazard to his trading section.
901116:  Commanding Officer recommended discharge under honorable conditions (general) by reason of convenience of the government due to a severe personality disorder.
901206:  GCMCA [Commanding General, Marine Corps Logistics Base, Albany] separation processing may not be initiated until Corporal has been counseled in accordance with paragraph 6105. It is noted that Corporal has been counseled during his current enlistment, concerning indebtedness. This however is not sufficient for processing by reason of personality disorder. Recommend Corporal be counseled concerning personality disorder and misconduct.
901213:  Counseled for deficiencies in performance and conduct. [Personality disorder by displaying immaturity and substandard behavior and conduct causing potentially hazardous disruptive conditions at your work section. Also counseled on our indication of suicidal tendencies mainly financial difficulties, marriage separation, misconduct as reflected in his 2 NJP’s dated 900612 and 901011 and a decline in performance barring him from accomplishing assigned duties.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
910617:  NJP for violation of UCMJ, Article 112A:
 Specification: Wrongfully us THC on 910605.
 Awarded forfeiture of $538.00 per month for 2 months, restriction and extra duties for 45 days, reduction to E-3. Forfeiture suspended for 6 months. Appealed 910624. Appeal denied 910708.
910724:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions and misconduct due to drug abuse. The factual basis for this recommendation was your three nonjudicial punishments during your current enlistment. On 900612 you received NJP for a violation of Article 86, UCMJ, failure to go to appointed place of duty, on 901011, you received NJP for another violation of Article 86, UCMJ, failure to go to appointed place of duty; and on 910617 you again received NJP for a violation of Article 112A, UCMJ, wrongful use of marijuana. On 901213, you were counseled, in accordance with paragraph 6105 of the reference concerning your deficiencies, was provided recommended corrective action, assistant available, and the consequences of failure to take corrective action.
910724:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions and misconduct by reason of misconduct due to drug abuse.
910806:  Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
911004:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to minor disciplinary infractions and drug abuse, that the misconduct warranted separation, and recommended discharge under honorable conditions (general).

911009:  SJA review determined the case sufficient in law and fact.
911010:  GCMCA [Commander, Marine Corps Logistics Base, Albany] directed the Applicant's discharge under honorable conditions (general) by reason of misconduct due to minor disciplinary infractions.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19911018 under honorable conditions (general) 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. 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. 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 three nonjudicial punishment proceedings for three violations of Articles 86 and 112a 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 2. The Applicant contends that his ability to serve in the Marine Corps was impaired because of marital and family problems. While he may feel that his personal problems were the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service. The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.

Issue 3. The applicant’s misconduct warranted separation for misconduct due to minor disciplinary infractions and is clearly documented in the service record. The separation authority determined that a misconduct due to minor disciplinary infractions clearly described the reason for discharge. Relief denied.

Issues 4-5. The Applicant contends that his record of Article 15’s “indicate only [minor] offences” and that his ratings were outstanding before assignment to MCLB, Albany G.A. Reference (A) states a Marine may be separated when there is a documented series of at least three minor disciplinary infractions, during the current enlistment, of a nature which have been or would have been appropriately disciplined under Article 15, UCMJ, commanding officer's nonjudicial punishment. The Applicant’s service record is marred by award of nonjudicial punishment (NJP) for illegal drug use in addition to two separate infractions for Article 86 violations thus substantiating the misconduct for which he was separated. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. In the Applicant’s case, the Board could discern no impropriety or inequity and therefore consider his discharge proper and equitable. 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 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 112a, illegal substance use.
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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