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USMC | DRB | 2005_Marine | MD0500514
Original file (MD0500514.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD05-00514

Applicant’s Request
The application for discharge review was received on 20050126. The Applicant requests the characterization of service received at the time of discharge be changed to honorable conditions and the reason for the discharge be changed to “CONV. of GOV or INVOL. DIS.” The Applicant requests a documentary record discharge 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 20050512. 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 characterization of and reason for 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. To restore my honor and self dignity, from unjust incrimination and command mistreatment.
2.       To make available continued service in the U.S. Armed Forces.
3.       To receive my GI Bill for continuing my aviation schooling at Moody Bible Institute. “

14. Continuation of Item 6. Issues:
 “1. I received 2 NJP’s over a period of 40 days, that resulted in a General discharge for a “Pattern of Misconduct.” The 1st NJP was for being charged with UA for not reporting to work at 0645 because I was not relieved of 24hr duty at the barracks until 0730. After I got off post at 02001 went to my room till 0730 when 1 received a phone call from Cpl H_ of my shop; he told me I was late and to get to work ASAP. He later stated that I cursed at him and was disrespectful. Cpl H_ was my friend as well as a senior Marine, and being a Christian I would never speak that way toward him. Sgt L_ came to the barracks and asked why I was late and told me that I was on the flight schedule. I was shaving at the time and didn’t stand at attention while he was speaking to me, and I was surprised that I was expected to fly when I didn’t have 8hrs of mandatory crew rest. Sgt L_ reported my lack of response and mannerisms as being disrespectful. While being charged with these alleged offenses, I was asked for my ID card. I had taped a photocopy to my card, altering my birthday to say I was old enough to drink in Japan. The NCO’s of my shop began to haze myself and 2 other Marines for the next 3 days. I accepted the hazing as a substitute, believing I would not be prosecuted further. They did intend to NJP after the hazing. I received a medical recommendation for administrative separation a few days after the hazing and 2 more at later dates (see medical records). Continued in Item 16. Remarks.”

Item 16. Remarks:
“My command ignored these recommendations and made an example of me.
My 2nd NJP was for not stripping wax, mopping, relaying the wax, and buffing the barracks hallways by myself at 2030 on a non-field day night. The duty Cpl P_ came to my room while I was on 60 days of restriction, and I refused to clean because I was not on extra punitive duties (EPD) and this job would have taken me 2-3hrs to complete. I also said that I would soon be separated from the USMC. He charged me with disobeying a direct order and I was reduced to Private, placed on 60 additional days of restriction and received 2 more months of half pay. I was granted leave while being administratively separated , to use up the remaining 20 days of my leave, but SgtMaj D_ cancelled my leave a few days before I was to leave and I was unable to refund the $700 plane ticket.


Before my first NJP I was 1 month from being promoted to Corporal because the cutting score for Corporals in my MOS was 1587 at that time (see ROS). After I was separated from active duty, much of my personal property suddenly became missing, when it should have been shipped to my home of record by special power of attorney to Sgt M_ (see attached). My command was very uncooperative with helping me recover my lost/stolen property, and it is still unrecovered.

2. Ever since I’ve been separated I wish that I could continue to serve while attending school. I very much liked serving my country and feel that I have let her down by not completing my commitment. An Honorable discharge would help enable me to do this.

3. This is my 2nd year of college and I have 4yrs remaining at Moody Bible Institute before I receive my B.S. in Missionary Aviation Technology. With an Honorable discharge I would receive my GI Bill to assist in the cost of this institute.

Thank you and God Bless. ”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
7 pages from the Applicant’s discharge package
8 pages from the Applicant’s medical record
Letter from Applicant to Inspector General of USMC, (not signed) dated 15 July 2003 (2   pages)
Copy of Power of Attorney, dated 24 January 2003
Copy of email sent from Applicant to Captain R_ W. S_, dated 9 April 2003 (2 pages)
Copy of 3 pages from Applicant’s Marine On Line account, dated 2002/11/11 and    2002/10/27

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              None
         Inactive: USMCR(J)                990923 - 000827  COG

 Period of Service Under Review :
Date of Enlistment: 000828               Date of Discharge: 030104

 Length of Service (years, months, days):

         Active: 02 04 26
         Inactive: None

 Age at Entry: 18                          Years Contracted: 5

 Education Level: 12                        AFQT: 84

 Highest Rank: LCpl                         MOS: 6173

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.1 (*)                       Conduct: 3.6 (*)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SSDR, REB, PSB

 Days of Unauthorized Absence: None

* Average marks as of 20021229.

 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 :

010924:  Counseled for deficiencies in performance and conduct. [Inability to follow orders and regulations by not shaving in the morning prior to reporting to work, to include my behavior and attitude towards individuals of higher authority.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

011114:  Counseled for deficiencies in performance and conduct. [“Unprofessional behavior and disrespect towards a Staff Non-Commission Officer during your final check for qualification as a crew chief. Disrespect toward your Flight Instructor by using unprofessional jesters shows a lack of respect, professionalism, and safety for others while in flight. And by not performing your duties as a crew chief student caused you to fail your final evaluation to qualify as a crew chief.”] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

020930:  Psychology consultation conducted at Branch Medical Clinic Iwakuni Urgent Care. Applicant was found in barracks room and taken to medical facility. Applicant admitted taking 10 over –the-counter sleeping pills, 10 Motrin pills, and then cutting his forehead, chest, arms, and legs.

021001:  Psychiatric evaluation conducted. Applicant diagnosed with acute adjustment problem associated with work.

021009:  Counseled for deficiencies in performance and conduct. [Failure to maintain a clean and healthy BEQ room. “Your room failed because of your lack of attention to detail in cleaning your air conditioner, which still had mold and mildew on it.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued

021017:  NJP for violation of UCMJ, Article 92: Insubordinate conduct towards a warrant officer, noncommissioned officer, or petty officer (2 counts).
         Violation of UCMJ, Article 86: Unauthorized Absence, without authority absent himself at his appointed place of duty.
         Violation of UCMJ, Article 134: False or Unauthorized Pass Offense, possession of an altered military ID card.
Awarded forfeiture of $619.00 month for 2 months, restriction for 60 days, reduction in grade to Private First Class. Not appealed.
021028:  Medical evaluation by a U.S. Navy psychiatrist. Applicant referred to mental health clinic after ingesting 10 motrin and 10 unisom and cutting on his forehead, chest, arms and legs on the morning of Sept 30 because he did not want to go to work.
         Axis I: Occupational Problem. Substance induced mood disorder – ephedra use, rule out.
         Axis II: Personality Disorder NOS with antisocial and borderline traits.
         Axis III: None
         Axis IV: Demands of USMC duty.
        
Plan: This member is not considered mentally ill but manifest a longstanding disorder of character and behavior, which is of such severity as to render the individual incapable of serving adequately in the USMC. The member does not presently require and will not benefit from hospitalization or psychiatric treatment. Although the member is not presently considered suicidal or homicidal, he is judged to represent a continuing danger to self or others if retained in the USMC service. The member is deemed fit for return to duty for processing for administrative separation, which should be initiated.

021028:  Medical evaluation by a U.S. Navy psychologist. Applicant was referred for mental health screen after having written a letter to CO implying that the Applicant may have thoughts of suicide or homicide.
         Assessment: Personality Disorder (NOS) by history. Adjustment Disorder with depressed mood.
         Plan: Concur with previous recommendation that the patient [Applicant] be processed for administrative separation. The patient is fit for duty for the purposes of serving the remainder of restriction and processing for separation. The patient is currently deemed at low risk of harm to self or others and has contracted for safety. The patient is responsible for his actions. There is no known psychological contraindication to the patient’s participating in any administrative, legal, or disciplinary action deemed warranted by the command.

021029:  Counseled concerning pattern of misconduct. [Specifically, (3) 6105’s for misconduct and unprofessional behavior and (1) NJP dated 021017 for violation of Art 92 and 86 respectively during first enlistment.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

021029:  Counseled for deficiencies in performance and conduct. [“Violation of Commanding Officer’s Restriction policy letter dtd 17 Oct 02. On 26 Oct 02 you failed to check with the DNCO for the 1800 muster.”] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

 021127:  NJP for violation of UCMJ, Article 92: Failure to obey order or regulation
Awarded forfeiture of $552.00 per month for 2 months, reduction in grade to Private. Not appealed.






030106:  Applicant notified of intended recommendation for discharge by reason of misconduct due to a pattern of misconduct and by convenience of the government due to a personality disorder; the primary basis for discharge is pattern of misconduct. Applicant further notified that the least favorable characterization that he may receive is under other than honorable and that the Commanding Officer is recommending that the Applicant receive a general (under honorable conditions) discharge.

030107:  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.

030107:  Applicant submitted a conditional waiver request. Applicant requests a general (under honorable conditions) discharge in lieu of electing an administrative discharge board.

030107:  Commanding Officer recommended that the Applicant be administratively separated with a general (under honorable conditions) by reason of misconduct due to a pattern of misconduct and convenience of the government due a personality disorder. The primary basis is misconduct due to a pattern of misconduct. The factual basis for this recommendation is numerous violations of the UCMJ to include disrespect towards a NCO, unauthorized absence, having an altered military ID card, as supported by his non-judicial punishment, and five page 11 entries and his diagnosis of having a personality disorder and adjustment disorder with depressed mood as supported by Lt B_ MSC/USNR of Medical Health Department, BMC Makalapa on 28 Oct 2002 and Dr. Walker of TAMC, on 02 Oct 02.

030122:  SJA review determined the case sufficient in law and fact.

030124:  GCMCA, Commanding General, 1st Marine Aircraft Wing, directed that Applicant be separated with a general (under honorable conditions) discharge by reason of misconduct due to a pattern of misconduct and convenience of the government due to a personality disorder. The primary basis for discharge is misconduct due to a pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030124 with a general (under honorable conditions) discharge 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. The separation process was in strict compliance with the Marine Corps Separation and Retirement Manual. The Applicant was diagnosed with a personality disorder by a competent medical authority. In accordance with regulation, when separation processing is warranted for any reason in addition to personality disorder (convenience of the government), dual or multiple processing is required. The regulation also states that if separation can be based on misconduct, the separation authority will use that as the basis for separation in spite of the personality disorder. The Applicant’s misconduct is clearly documented in the service record. The Applicant was dual processed for separation by reason of misconduct due to a pattern of misconduct, and convenience of the government due to a diagnosed personality disorder. The separation authority determined that a pattern of misconduct most clearly described the reason for discharge. No other Narrative Reason for Separation could more clearly describe why the Applicant was discharged. To change the Narrative Reason for Separation would be inappropriate.

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 4 retention warnings and 2 nonjudicial punishment proceedings for violations of Articles 86 (UA), 92 (failure to obey order, regulation), and 134 (false or unauthorized pass offense) of the UCMJ. Further, the Applicant submitted a conditional waiver request to GCMCA requesting a general (under honorable conditions discharge). 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.

Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, NDRB is not authorized to change a reenlistment code. Neither a less than fully honorable discharge nor an unfavorable "RE" code is, in itself, a bar to reenlistment. A request for a waiver is normally done only during the processing of a formal application for enlistment through a recruiter



The Veterans Administration determines eligibility for post-service benefits not the Naval Discharge Review Board. 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. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing educational opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.

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. The Applicant can provide documentation to support any claims of post-service accomplishments or any other evidence related to his discharge at that time. 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, failure to obey, regulation.
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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