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NAVY | DRB | 2004 Marine | MD04-01005
Original file (MD04-01005.rtf) Auto-classification: Denied


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


ex-PFC, USMC
Docket No. MD04-01005

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 requests a documentary record review. The Applicant did not list any 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: UNDER OTHER THAN 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:

 “ Issue 1. My discharge was inequitable and improper because it was based on events that occurred after I became mentally ill. For the two years prior to that I performed as an honorable contributing and upstanding marine.
See Written Submission by G_ J_ S_ ( Applicant ) (Attachment A)
 All pages 1-8
Summary-page l, #l & #3
 page 4, paragraph 6
page 5 , paragraph 1 and paragraph 2
 page 6, last paragraph (last bullet)
See DD Form 214, Item 13 (decorations, medals etc) (Attachment B)
 See letter from Dr. P_ W_ G_, MD (Summit health Professionals) (Attachment C)
 See outpatient notes from Dr. P_ G_ (Attachment C)
 See letter from U.S. Senator L_ E_ C_ (Attachment D)
Issue 2 . My discharge was inequitable because my Administrative Separation was not processed expeditiously as recommended by the Division Psychiatrist, R_ D_ P_, CDR MC USNR. An expeditious separation was recommended on March 11, 2003 but was not finalized until October 3, 2003. If the separation had been processed expeditiously, then none of the infractions that were used as the basis for an “other than honorable” discharge would have occurred.
 See Written Submission by G_ J_ S_ ( Applicant )(Attachment A)
 All pages 1-8
Summary—page l, #2 & #3
 page 3, paragraph 2 and paragraph 3 sentences 1-4
 page 4, paragraph 1 and paragraph 2 sentences 1-3
page 5, paragraph 1, paragraph 2, paragraph 3, and paragraph 4 sentences 1 & 2
 page 7, paragraph 1, paragraph 6, and paragraph 7
 page 8, paragraph 1, paragraph 2, and first sentence under “Current Situation”
See cover letter to Naval Council of Personnel Boards from G_ J_ S_ ( Applicant ) (attached to written submission by G_ J_ S_ ( Applicant )) (Attachment A)
See letter from U.S. Senator L_ E_ C_ (Attachment D)
Issue 3 . My discharge was inequitable because Commander R_ D_ P_ (Division Psychiatrist, 2d Marine Division) misdiagnosed my medical condition and its severity, provided inadequate and ineffective medical treatment, failed to prescribe appropriate medication and treatment, and included false statements concerning the nature and severity of my condition in his recommendation for Administrative Separation.
See letter from Dr. P_ G_, MD (Summit Health Professionals) (Attachment C)
See outpatient notes from Dr. P_ G_ (Attachment C)
 See letter from Division Psychiatrist, 2d Marine Division to the Commanding Officer, 2d Marine Regiment, Subject: Recommendation for Administrative Separation ICO: Lcpl S_ ( Applicant ) (Attachment E)
 See Social Security Administration Notice of Award for Social Security Disability (Attachment F)
See Certificate of Eligibility from the Idaho Division of Vocational Rehabilitation
 (Attachment F)
 See Written Submission by G_ J_ S_ ( Applicant ) (Attachment A)
All pages 1-8
 Summary - page 1, #4
 Page 2, paragraph 4, paragraph 5, and paragraph 6
Page 3, paragraph 1
Page 4, paragraph 3
 Page 5, paragraph 4 and paragraph 5
 Page6
Page 7, paragraph 2, paragraph 3, paragraph 4, paragraph 5, and paragraph 6
Page 8, last two full paragraphs
Issue 4 . Because of the inequitable and improper discharge under “Other than Honorable Condition” for the reason of misconduct, I have been denied or am not currently eligible for VA benefits, disability benefits, education benefits under the GI bill to which I contributed, and other military benefits accorded someone with an honorable discharge. Furthermore, I have been denied unemployment benefits based on the status of my military discharge, denied eligibility for student financial aid for college, and I am faced with mounting medical bills. In conjunction with the request for a change in my discharge status to that of “honorable”, I request full and immediate reinstatement of all military benefits including disability benefits, education benefits, and medical benefits, etc. I also request restitution for the following:
 VA Disability Compensation retroactive to October 2003   TBD
 Immediate correction of my status with the Department of         $4,050.00
 Veterans Affairs to reinstate eligibility for student financial aid or restitution of expected aid*
 Lost unemployment benefits (26 weeks x $l46/wk)**        $3,796.00
Out of pocket medical expenses (August 2003 to May 2004)***      $1,435.26
 Medication expenses (January - May 2004) ($103.86/mo)    $ 346.97
 Reimbursement for G_ S_'s ( Applicant 's) trip to Camp     $1,341 .00
Lejeune on August 26-28,2003 ****”







Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Letter from Applicant’s father, dated May 24, 2004
Summary from Applicant, undated (8 pages)
Applicant’s DD Form 214
Letter from a Summit Health Professionals doctor, dated April 27, 2004
Assessment, dated February 2, 2004
Assessment, dated February 25, 2004
Assessment, dated March 19, 2004
Assessment, dated April 27, 2004
Letter from United States Senate, dated May 21, 2004
Letter from United States Senate, dated December 16, 2003
Letter from United States Senate, dated November 19, 2003
Letter from United States Senate, dated July 11, 2003
Letter from United States Senate, dated April 29, 2003
Letter from United States Senate, dated February 25, 2003
Letter from Division Psychiatrist, 2d Marine Division, Camp Lejeune, NC, dated March 11, 2003
Notice of award of monthly disability benefits, dated April 5, 2004
Certificate of eligibility for vocational rehabilitation services, dated February 27, 2004
Patient insurance/tax form for the dates October 31, 2003 thru May 13, 2004, dated May 13, 2004
Psychiatrist bill, dated March 1, 2004
Insurance payment statement, dated March 8, 2004
Intermountain emergency statement for services on January 21, 2004
Family Care Center, Inc statement for services from November 18, 2003 to February 16, 2004
Bill from a doctor, dated February 4, 2004
Bill for individual therapy, dated August 7, 2003
Statement from Idaho Falls Surgical Center, Inc, dated April 30, 2004
FAFSA student access on the web, dated May 13, 2004 (2 pages)
Delta Airline charges in August 2003

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
          Inactive: USMCR(J)                000803 - 001002  COG
Period of Service Under Review :
Date of Enlistment: 001003               Date of Discharge: 031003

 Length of Service (years, months, days):
         Active: 03 00 01         Does not exclude lost time
          Inactive: None
Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 77
Highest Rank: LCpl                         MOS: 0331

 Final Enlisted Performance Evaluation Averages (number of marks):
Proficiency: 3.6 (8)                       Conduct: 3.7 (8)

 Military Decorations: None
Unit/Campaign/Service Awards: AFEM, SSDR, NDSM, RQBE, PQBM

 Days of Unauthorized Absence: 27
Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MARCORSEPMAN Par. 6210.3.

 Chronological Listing of Significant Service Events :

011002:  NJP for violation of UCMJ, Article 92 (2 specs):
 Specification 1: Disobey 1 st Sgt’s order on 010926 by drinking while in the field.
 Specification 2: Disobey lawful order BO 1700.6H on 010926, by drinking while under the legal age.
Awarded forfeiture of $266.00 per month for 1 month, restriction and extra duties for 14 days. Not appealed.
011002:  Counseled for deficiencies in performance and conduct. [Disobeyed a lawful order and drinking under age.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
030211:  NJP for violation of UCMJ, Article 86:
 Specification: Absent from place of duty on 030210.
 Violation of UCMJ, Article 91:
Specification: Having received a verbal order from two Corporals, refused to report to mess deck on 1900, 030210.
 Violation of UCMJ, Article 134:
 Specification: Communicate a verbal threat using vulgar language toward a Sergeant, Corporal and Lance Corporal on 030210, by saying, “Fuck you” and then threatened to verbally assault Corporal by stating “I will kick your skinny ass” while directly pointing a finger at Corporal’s face.
 Awarded forfeiture of $336.00 per month for 1 month, restriction and extra duties for 14 days. Forfeiture suspended for 4 months. Not appealed.
030212:  Counseled for deficiencies in performance and conduct. [Overall lack of leadership due to disrespect towards NCO’s and insubordinate conduct toward your superiors.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
030311:  Examination by the division psychiatrist resulted in the Applicant being recommended for expeditious administrative separation. Member was not mentally ill and was responsible for his behavior. Diagnosed with a personality disorder NOS, with borderline features.

030829:  NJP for violation of UCMJ, Article 86 (2 specs):
 Specification 1: Absent form appointed place of duty on 0701-1430, 030717.
 Specification 2: Absent from appointed place of duty on 0701, 030801 to 1010, 030827.
Awarded forfeiture of $645.00 per month for 2 months, restriction and extra duties for 45 days, reduction to E-2. Not appealed.
030903:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.
030903:  Applicant advised of rights, and having elected not to consult 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.
030903:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

030923:  SJA review determined the case sufficient in law and fact.

 030929:  GCMCA [Commanding General, 2d Marine Division, II Marine Expeditionary Force] directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20031003 under other than 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).
Issue 1. A characterization of service of under other than honorable conditions is warranted when the member's conduct constitutes a significant departure from that expected of a Marine. The Applicant’s service was marred by award of nonjudicial punishment (NJP) on three occasions for unauthorized absence, disobeying orders from superiors, underage drinking and communicating a threat. The Applicant’s conduct, which forms the primary basis for determining the character of his service, falls short of that required for an honorable characterization of service. While he may feel that his mental condition at the time 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.
Issue 2. Upon the Applicant’s evaluation by the Division Psychiatrist on 20030311, he was made aware that the decision to administratively separate the Applicant rested with his command, not the psychiatrist’s recommendation. The fact that the Applicant was not discharged until 20031003 does not constitute an impropriety or inequity. Relief denied.

Issue 3. The Board does not consider the circumstances surrounding the Applicant’s stated condition and alleged incorrect diagnosis to be of sufficient nature to warrant an upgrade to his characterization of service. The documentation provided by the Applicant does not refute the presumption of regularity concerning his diagnosis and treatment while on active duty. Relief denied.
Issue 4. The Board’s regulations limit its 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 considered the Applicant’s discharge was proper and equitable.

The Veterans Administration determines eligibility for post-service benefits, not the NDRB. There is no requirement or law that grants recharacterization solely on the issue of obtaining veterans’ benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.
The Applicant’s discharge characterization accurately reflects his service to his country. Normally, to permit relief, an inequity or impropriety must have existed during the period of enlistment in question. No such inequity or impropriety is evident during the Applicant’s enlistment. Additionally, there is no law, or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time, hardship, or good conduct in civilian life, subsequent to leaving the service.

The Applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his 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 86, unauthorized absence; Article 91, disobey a NCO; Article 92, disobey a lawful order; and Article 134, communicate a threat.
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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