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NAVY | DRB | 2004 Marine | MD04-01357
Original file (MD04-01357.rtf) Auto-classification: Denied


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


ex-PFC, USMC
Docket No. MD04-01357

Applicant’s Request
The application for discharge review was received on 20040823. The Applicant requests the characterization of service received at the time of discharge be changed to honorable and the reason for the discharge be changed to “Medical, Head trauma.” 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 and narrative reason 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:
1. “A Medical condition called syncope caused Migraines that required Medication. The medication caused black outs and violent outbursts in above-mentioned member. Member requested at time of incident to receive a physical by a medical practioner to regard the state of mental health although treatment was received no documentation could be found on record.”


Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Thirteen pages from Applicant’s medical record

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
          Inactive: USMCR(J)                981015 - 991226  COG
Period of Service Under Review :
Date of Enlistment: 991227               Date of Discharge: 010527

 Length of Service (years, months, days):
         Active: 01 05 01
          Inactive: None
Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 57
Highest Rank: PFC                          MOS: 9971

 Final Enlisted Performance Evaluation Averages (number of marks):
Proficiency: None                          Conduct: None

 Military Decorations: None
Unit/Campaign/Service Awards: RMB

 Days of Unauthorized Absence: None
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 :

001010:  Counseled for deficiencies in performance and conduct. [Disobeyed order to get a haircut.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
001018:  NJP for violation of UCMJ, Article 128: Attempted assault.
 Awarded forfeiture of $263.00, restriction and extra duties for 14 days. Not appealed.
001018:  Counseled for deficiencies in performance and conduct. [Assault.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
001212:  Counseled for deficiencies in performance and conduct. [Disruptive during several periods of instruction, even after ordered by an NCO not to.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
010412:  NJP for violation of UCMJ, Article 91: Insubordinate to Cpl R_ on 010206.
          Violation of UCMJ, Article 134: Assaulted Cpl R_ by saying “Take off your blouse so I can kick your ass.”
 Violation of UCMJ, Article 92 (3 specs):
 Specification 1: Wearing earrings in his nipples.
Specification 2: Disobeyed order to organize his wallocker.
 Specification 3: Lit a flare in a Quonset hut on 2120, 010401.
 Awarded forfeiture of $521.00 per month for 2 months, restriction and extra duties for 45 days, reduction to Pvt. Not appealed.
Undated:         Counseled for deficiencies in performance and conduct. [Insubordinate conduct, assault, disobeyed lawful orders.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
010425:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.
010425:  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.
010425:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct. The factual basis for this recommendation was Applicant’s failure to obey rules and regulations resulting in two NJPs and one 6105 counseling.
010508:  SJA review determined the case sufficient in law and fact.

 010508:  GCMCA [Commander, MCB CPCA] 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 20010527 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. T he Applicant’s service was marred by award of nonjudicial punishment (NJP) on two occasions and adverse counseling entries on other occasions for disobeying orders, insubordinate conduct, and assault. Administrative separation for misconduct takes precedence over potential separation for other reasons. No other narrative reason more clearly describes the circumstances surrounding the Applicant’s processing for administrative separation. The Applicant’s conduct, which forms the primary basis for determining the character of his service, falls short of that required for an honorable or under honorable (general) characterization of service. While he may feel that his medical 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. The Applicant’s medical records provided for review and his statements do not refute the presumption that he was properly and equitably separated under other than honorable conditions for misconduct due to a pattern of misconduct. Relief denied.

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, or good conduct in civilian life, subsequent to leaving the service. Relief not warranted.

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 P1900.16E), effective 31 Jan 97 until 31 Aug 01.

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 91, disrespect to a NCO; Article 92, disobey a lawful order; and Article 128, assault.
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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