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NAVY | DRB | 2004 Marine | MD04-00974
Original file (MD04-00974.rtf) Auto-classification: Denied


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

ex-PVT, USMC
Docket No. MD04-00974

Applicant’s Request
The application for discharge review was received on 20040525. 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 Veterans of Foreign Wars as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041222. 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: BAD CONDUCT DISCHARGE/COURT-MARTIAL, authority: MARCORSEPMAN Par. 1105.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1. “I would like to have my discharge upgraded to honorable. I feel that while in the service I was put under a lot of pressure and I was not afforded a proper medical exam. I have been diagnosed with Anxiety and depression and while in the service I was not afforded the opportunity to seek medical attention. Please see attach documents.”

Issues submitted by Applicant’s counsel/representative ( VETERANS OF FOREIGN WARS:
2. “ EQUITY ISSUE: Based on our review of the evidentiary record and on behalf of this former member, we request that the Board consider provisions of SECNAVINST 5420.174C, enclosure (1), chapter 9, as it pertains to an upgrade decision, in assessing the merits of this application.

This former member enlisted in the United States Marine Corps on November 12, 1996 and was discharged on September 15 , 1998. He was separated by Special Court Martial Authority, Special Court Martial Manual and given a Bad Conduct Discharge. He was guilty of being in an unauthorized status on several occasions.

He contends he was treated for anxiety with depression mental disorder. This disorder is defined in the Diagnostic Statistical Manual IV-R edition.

His medical records of treatment are part of his record for review. Essentially, as noted on DD Form 293, this former member is requesting that his discharge be upgraded and his narrative reason be changed to Hardship because his in service mental health evaluation misdiagnosed the problems he was experiencing as a mental disorder when in fact it was due to the severity of his mental disorder.

We refer this case to the Board for their careful and compassionate consideration. We request the applicant’s discharge be fully reviewed for an upgraded discharge. His medical records of treatment are part of his record for review.

National Service Office Supervisor
 Washington (DC) Regional Office ”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214
Disclosure Form dtd 031212
12 pages from Applicant’s civilian medical record
Ltr frm S_ H_ dtd 031203
Ltr frm Applicant, undated
Ltr frm Applicant dtd 040406
Ltr frm Brown County VSO dtd 040517

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                960923 - 961111  COG

 Period of Service Under Review :
Date of Enlistment: 961112               Date of Discharge: 980915

 Length of Service (years, months, days):

         Active: 01 10 03                  [Does not exclude lost time]
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 44

 Highest Rank: Pvt                          MOS: 9971

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.3 (4)                       Conduct: 2.2 (6)

 Military Decorations: None

 Unit/Campaign/Service Awards: None

Days of Unauthorized Absence: 128

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

BAD CONDUCT DISCHARGE/COURT-MARTIAL, authority: MARCORSEPMAN Par. 1105.

 Chronological Listing of Significant Service Events :

971118:  Special Court-Martial.
         Charge I: violation of the UCMJ, Article 86 (2 Specifications):
         Specification 1: UA from 15 April 97 and remain so absent until 10 June 97 (56 das).
         Specification 2: UA from 28 July 97 and remain so absent until 8 October 97 (72 das).
         Findings: to Charge I and specifications thereunder, guilty.
         Sentence: Confinement for 45 days and a bad conduct discharge.
         CA 980202: Sentence approved and ordered executed except for the BCD.

971124:  SF93, Report of Medical History Block 8, Applicant indicated of his present health, “I’m in good health and taking no medications.”

980319:  NC&PB denied clemency and restoration.

980616:  NMCCMR: Affirmed findings and sentence.

980910:  Appellate review complete, no petition for review received by Appellate Review Activity.

980915:  SSPCMO: Article 71c, UCMJ, having been complied with, Bad Conduct discharge ordered executed.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19980915 with a bad conduct discharge which was the sentence adjudged by a properly convened special court-martial. That sentence was subsequently approved by both the convening and appellate review authorities (A and (B). The Board presumed regularity in the conduct of governmental affairs (C).

Issue 1. With respect to a discharge adjudged by a court-martial case, the action of the NDRB is restricted to upgrades based on clemency. Clemency is an act of leniency that reduces the severity of the punishment imposed. After a thorough review of the Applicant’s record, issues submitted, and post service accomplishments, the Board determined that clemency was not warranted and that the sentence awarded the Applicant at his court-martial was appropriate for the offenses he committed. Relief denied

Issue 2. The Applicant’s case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency. The NDRB found the evidence of record did not contain sufficient mitigating or extenuating factors to offset the seriousness of the offenses for which the discharge was awarded. In addition, the reason for discharge, conviction by special court-martial, is most appropriate. 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 1105, DISCHARGE ADJUDGED BY SENTENCE OF COURT-MARTIAL , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 950818 until 010831.

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 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.


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 “ http://Boards.law.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:

                  Secretary of the Navy Council of Review Boards
                   Attn: Naval Discharge Review Board
                   720 Kennon Street SE Rm 309
                  Washington Navy Yard DC 20374-5023

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