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NAVY | DRB | 2004 Marine | MD04-00712
Original file (MD04-00712.rtf) Auto-classification: Denied


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


ex-PFC, USMC
Docket No. MD04-00712

Applicant’s Request
The application for discharge review was received on 20040324. The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions. The Applicant requests a documentary record discharge review. The Applicant listed Department of Veterans Services as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041015. 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/IN LIEU OF TRIAL BY COURT-MARTIAL, authority: MARCORSEPMAN Par. 6419.





PART I - APPLICANT’S ISSUES AND DOCUMENTATION


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

 1. “I did well in boot camp and then as the stress level rose the drill instructor failed to recognize my tourettes syndrome became more pronounced where the other soldiers began to add to the stress where I could not perform to the level
Instead of being medically discharged I was given the Discharge under Dishonorable condition which I feel I do not deserve.
This condition was diagnosed in the service the service.”

 Additional issues submitted by Applicant’s counsel/representative (Department of Veterans Services):

2. “I’m writing this letter in behalf of [Applicant] in his desire to upgrade his discharge.

It is my believe that his undiagnosed Tourettes Syndrome during the Service and the lack of understanding by his Superiors as well as his fellow soldiers lead to the actions that caused him to receive and accept the discharge he was finally given.

He is now trying to move on with his life and get it in order and he feels he deserves at least a General Discharge under Honorable Conditions.

If you review his Service File you will find that he performed very well until the stress level effected the tourettes to where it effected those around him.

I thank you for your attention in this matter.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (Member 1)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
          Inactive: USMCR(J)                971212 - 980126  COG

 Period of Service Under Review :
Date of Enlistment: 980127               Date of Discharge: 991109

 Length of Service (years, months, days):
         Active: 01 09 13         Does not exclude lost time
          Inactive: None
Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 35
Highest Rank: PFC                          MOS: 3381

 Final Enlisted Performance Evaluation Averages (number of marks):
Proficiency: 4.6 (2)                       Conduct: 3.0 (3)
Military Decorations: None

 Unit/Campaign/Service Awards: RMB
Days of Unauthorized Absence: 377

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

UNDER OTHER THAN HONORABLE CONDITIONS/IN LIEU OF TRIAL BY COURT-MARTIAL, authority: MARCORSEPMAN Par. 6419.

 Chronological Listing of Significant Service Events :

980521:  Counseled for deficiencies in performance and conduct. [Improper force while a student billet holder. Your pushing another student with an M1642 service rifle was improper conduct.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

980805:  Applicant to unauthorized absence 0701, 980805.

 990727:  Applicant evaluated by private physician. Physician’s statement […I initially evaluated him on April 26, 1990 when he was a child. I saw him 3 times between then and February 1991. The diagnosis at the time was Tourette’s Disorder, a neurological condition characterized by motor and vocal ties.] [Extracted from discharge package.]

990817:  Applicant from unauthorized absence 0930, 990817 (377 days/surrendered).

990902:  Charges preferred to special court-martial for violation of the Uniform Code of Military Justice (UCMJ) Article 86: Unauthorized absence from 0701, 980805 to 0930, 990817 (377 days/surrendered).
990917:  Psychiatric Evaluation: Diagnosed with Tourettes Disorder and obsessive compulsive disorder. Member is found not mentally ill and is responsible for his behavior.
991004:  Applicant, having consulted with counsel certified under UCMJ Art 27b, requested discharge for the good of the service to escape trial by court- martial. In the request the Applicant noted that his counsel had fully explained the elements of the offenses for which he was charged and that he understood the elements of the offenses. He further certified a complete understanding of the negative consequences of his actions and that characterization of service would be under other honorable conditions. The Applicant admitted guilt to the following violations of the UCMJ, Article 86: Unauthorized absence from 981112 to990817.
Undated:         Applicant’s statement.

 991029:  SJA review determined the case sufficient in law and fact.
991101:  GCMCA [Commanding General, 2d Marine Division, II Marine Expeditionary Force] determined that Applicant had no potential for further service, that separation in lieu of trial by court-martial was in the best interest of the service, and directed discharge under other than honorable conditions by reason of conduct triable by courts-martial.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

 Discussion

The Applicant was discharged on 19991109 under other than honorable conditions in lieu of trial by court-martial (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 1-2. On 19991004, the Applicant requested discharge for the good of the service to escape trial by court-martial. In the request for discharge, the Applicant noted that his counsel had fully explained the elements of the offense for which he was charged and that he was guilty of the offense. He further certified a complete understanding of the negative consequences of his actions and that characterization of service would be under other than honorable conditions. While he may feel that his medical condition and perceived lack of treatment was a factor that contributed to his actions, the record clearly reflects his disregard for the requirements of military discipline and demonstrated that he was unfit for further service. The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. 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 6419, SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective
18 Aug 95 until 31 August 2001.

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 for more than 30 days.

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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