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NAVY | DRB | 2004 Marine | MD04-01004
Original file (MD04-01004.rtf) Auto-classification: Denied


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

ex-PFC, USMC
Docket No. MD04-01004

Applicant’s Request
The application for discharge review was received on 20040603. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requested a personal appearance hearing discharge review before a traveling panel closest to St. Petersburg, FL, VARO. In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington DC area. The NDRB also advised that the board first conducts a documentary review prior to any personal appearance hearing. The Applicant designated the 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: GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: MARCORSEPMAN Par. 6210.3.


PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1. “My record of NJP’s/Article 15s indicates only minor or isolated offenses.”

2. “My ability to serve was impaired by my learning disability.”

3. “My ability to serve was impaired by my low aptitude scores.”

4. “I was so close to finishing my tour that it is unfair to give me a GENERAL Discharge under HONORABLE Conditions.”


Additional issues submitted by Applicant’s counsel/representative (VETERANS OF FOREIGN WARS):

5. “Based on our review of evidentiary record and on behalf of this former member, we opine that characterization assignment of this applicant’s discharge because he satisfies requirements provided under MARCORSEPMAN, Par. 1004 for a fully honorable discharge. On this basis, we petition the Board’s relief.

The former member has clearly stated throughout his service record he suffered from learning disabilities, personality disorders and had his life threatened due to his disabilities. We contend his record indicates only minor or isolated offenses.

He was diagnosed with Attention Deficit Disorder, Learning Disorder and Not Suitable for continued service on March 25, 2002, by a LTMC USNR known to be a qualified U.S. Naval Officer.

Essentially, as noted on DD Form 293, this applicant is requesting that his discharge be upgraded because the records support a fully honorable discharge.

We refer this case to the Board for their careful and compassionate consideration and request the applicant’s discharge be reviews for an upgraded discharge.

Sincerely,
W_ G. C_”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s statement (2 pages)
Copy of DD Form 214
Applicant’s pre-enlistment documents (5 pages)
Entrance Waiver for applicant dtd Oct 9, 1998
Enlistment Physical Exam dtd Jul 25, 1997
Bureau of Medicine and Surgery’s ltr Jun 18, 1998 concerning enlistment waiver
Psychiatrist Summary Report dtd Mar 25, 2002
Discharge Notification ltr dtd Jul 25, 2002
Service Record pages (9 pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                980622 - 981116  COG

 Period of Service Under Review :
Date of Enlistment: 981117               Date of Discharge: 020909

 Length of Service (years, months, days):

         Active: 03 09 23
         Inactive: None

 Age at Entry: 23                          Years Contracted: 4

Education Level: GED (10)                          AFQT: 33

 Highest Rank: LCpl                         MOS: 3381

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.9 (8)                       Conduct: 3.7 (8)

 Military Decorations: None

 Unit/Campaign/Service Awards: Rifle Marksman Badge, NDSM, HSM, AFEM, SSDR

 Days of Unauthorized Absence: None

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: MARCORSEPMAN Par. 6210.3.

 Chronological Listing of Significant Service Events :

990517:  NJP for violation of UCMJ, Article 91 (2 Specs):
 Specification 1: did, on 1 May 1999, on or about 0200, disobeyed a lawful order given by SSgt D_ to wit: No student will change their Fire Watch without proper authorization, did disobeyed said order by accepting money from another Marine to stand his Fire-Watch;
Specification 2: did, on 1 May 1999, disrespected the Officer of the Day (OOD) by pretending not to know where the Fire Watch for that time period was when the OOD inquired into his whereabouts.
Violation of UCMJ, Article 134: in that under the circumstances, conduct was to the prejudice of good order and discipline in the Armed Forces and was of a nature to bring discredit upon the Armed Forces.
Awarded forfeiture of $479.00 per month for 1 month, restriction and extra duties for 9 days and reduction in pay grade to E-1. Not appealed.
991207:  Counseled for deficiencies in performance and conduct [substandard performance in that you failed to meet the Marine Corps’ minimum requirement to pass the semi-annual PFT]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

000607:  Counseled for deficiencies in performance and conduct [substandard performance based on loss of ID card]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
001001:  Acknowledged eligibility but not recommended for promotion to Lance Corporal due substandard performance; failed to qualify on rifle range and failed to pass physical fitness test; displays an insubordinate attitude towards Marines in charge for 4 th Quarter CY-00 (Oct, Nov, Dec 00).
001101:  Counseled for deficiencies in performance and conduct [substandard performance in that have failed to display an acceptable level of responsibility, maturity, judgment and dependability]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
010101:  Acknowledged eligibility but not recommended for promotion to Lance Corporal due to failure to display the maturity, judgment nor proficiency required for the nest higher grade. Additionally, is not eligible due to failure of the semiannual PFT in Nov 00, for the 1st Quarter CY-01 (Jan, Feb, Mar 01).

010731:  NJP for violation of UCMJ, Article 91: On or about 1035, 010706, was disrespectful in deportment toward Cpl C_, a noncommissioned officer, then known by said Marine to be a superior noncommissioned officer, who was then in the execution of his office, by ignoring him when Cpl C_ was addressing him about the discrepancies in his room and by also saying to him “I didn’t have time” and “I’m not living here anymore.”
 Awarded forfeiture of $304.00 per month for 1 month (suspended for 6 months), restriction and extra duties for 14 days. Not appealed.
011226:  NJP imposed and suspended on 010731 for period of 6 months is hereby vacated and the punishment is ordered executed this date.

020123:  NJP for violation of UCMJ, Article 91: On or about 011220 member was disrespectful towards Staff Sergeant K. B. H_, a Staff Non-Commissioned Officer, by rolling his eyes and making accusatory towards SSgt H_ at H&S Co, AB, 3d MarDiv; violation of UCMJ, Article 92: On or about 011220 member failed to obey a lawful order given to him by SSgt H_ to take his position on the firing line at H&S Co, CAB, 3d MarDiv.
 Awarded forfeiture of $619.00 per month for 2 months (suspended for 6 months), restriction and extra duties for 45 days and reduction in pay grade to E-2. Not appealed.
020325:  Division Psychiatrist Summary:
Diagnostic Impression:
Axis I: Attention Deficit Hyperactivity Disorder, Partial Remission
Axis II: Learning Disorder Not Otherwise Specified
Axis II: Consider Borderline Intellectual Functioning or Mild Mental Retardation
Axis III: No diagnosis
Axis IV: Occupational Problems
This member has a psychiatric history strongly suggestive of Learning Disability. This Learning Disability existed prior to enlistment… It is my opinion that the difficulty the member has had adapting successfully to the Marine Corps is in large part secondary to his Learning Disability. Further, it is my opinion that member will continue to have problems adapting to the Marine Corps secondary to this Learning Disability.
020725:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions and a pattern of misconduct as evidenced by three nonjudicial punishments and three adverse page 11 counseling entries.
020730:  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 and to submit a statement.

020731:  Applicant’s statement.

020731:  Commanding Officer, Combat Assault Battalion, recommended discharge with a general (under honorable conditions) by reason of misconduct due to minor disciplinary infractions, and a pattern of misconduct.

020808:  SJA review determined the case sufficient in law and fact.

020812:  GCMCA [Commander, 3d Mar Div] directed the Applicant's discharge with a General (under honorable conditions) by reason of misconduct due to a pattern of misconduct, with separation code of “JNF1”.

020909:  DD Form 214 issued reflecting reason as “Review Action” and separation code of “JNF1”.

020920:  Commanding General, 3d MarDiv, advised the Commandant of the Marine Corps, of the letter approving applicant’s separation due to pattern of misconduct contained the wrong separation program designation code and the correct separation code is “JKA1.”

030811:  Headquarters, Marine Corps, MMSB-16, issued a DD Form 215 (Correction to DD Form 214) correcting member’s name, separation authority, separation code and the reason for separation.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20020909 with a general (under honorable conditions) for misconduct due to a pattern of misconduct (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 1-4. 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 three nonjudicial punishment proceedings for violations of Articles 91, 92 and 134 of the UCMJ. The Applicant also had punishment suspended on 20010731 vacated on 20011226, indicating further misconduct. The Board found that neither the evidence of record nor the statements and submissions of the Applicant demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. 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 5. There is no evidence in the record to suggest that 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 could discern no impropriety or inequity in the Applicant’s discharge. Therefore, the NDRB considered the Applicant’s 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 P1900.16F), effective 01 Sep 2001 until Present.

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 92, disobey a lawful order.

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.

D. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

E. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

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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