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USMC | DRB | 2005_Marine | MD0500582
Original file (MD0500582.rtf) Auto-classification: Denied


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

ex-PVT, USMC
Docket No. MD05-00582

Applicant’s Request
The application for discharge review was received on 20050217. 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 did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050811. 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 – Pattern of misconduct (administrative discharge board required but waived), authority: MARCORSEPMAN Par. 6210.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1. " I would like to join the Reserves."

2. "Not long after being discharged, I was diagnosed with Bipolar Disorder and looking back as the way I was while in the service, I truly believe I had Bipolar Disorder while serving in the Marine Corps."

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
No additional documentation was submitted by the Applicant

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                901212 - 911023  COG

 Period of Service Under Review :
Date of Enlistment: 911024               Date of Discharge: 940526

 Length of Service (years, months, days):

         Active: 02 07 03 (Does not exclude lost time)
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

Education Level: 12                        AFQT: 54

 Highest Rank: LCpl                         MOS: 0351

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.0 (10)                      Conduct: 3.6 (10)

 Military Decorations: None

 Unit/Campaign/Service Awards: National Defense Service Medal, Sea Service Deployment Ribbon, Pistol Marksmanship Badge, Rifle Sharpshooter Badge

 Days of Unauthorized Absence: 9


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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – Pattern of misconduct (administrative discharge board required but waived), authority: MARCORSEPMAN Par. 6210.3.






 Chronological Listing of Significant Service Events :

920326:  NJP for violation of UCMJ, Article 121: At Weapons Company, Infantry Training Battalion, SOI, MCB, Camp Lejeune, NC at 2000 on 920316, wrongfully appropriated a field jacket, the property of LCpl D_.
 Awarded forfeiture of $205.00 pay per month for 1 months, restriction and extra duties for 14 days. Not appealed.
920616:  Medical record entry: Applicant referred to 1st Battalion, 6th Marines Medical Officer by battalion chaplain for manic depression. Found by MO not to have suicidal or homicidal ideations, nor to fit DSM III criteria for major depression or manic-depressive disorder, but may eventually fall into dysthymia. MO finds Applicant fit for full duty but requires a routine referral to the Mental Health Clinic, Naval Hospital, Camp Lejeune, NC.

920629:  Medical record entry: Diagnosis of Adjustment Disorder without characteristics by medical officer at the Mental Health Clinic, Naval Hospital, Camp Lejeune, NC.

920710:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 121.
         Specification: Did at Camp Lejeune, NC, on or about 920520, steal an AT&T Calling Card the property of LCpl M.G. L_.
 Charge II: violation of the UCMJ, Article 134.
Specification: Did at Camp Lejeune, NC on or about 920520 to 920522 with the intent to defraud, falsely pretend to have authorization for use of an AT&T Calling Card, then knowing the pretense were false, and by means thereof did wrongfully obtain services of a value of $14.72 to wit: Long distance phone services.
         Finding: to Charge I and the specification thereunder, guilty. To Charge II and the specification thereunder, guilty.
         Sentence: Confinement for 30 days, forfeiture of $523.00 pay per month for 1 month, reduced to E-1.
         CA action 920710: Sentence approved and ordered executed.
920710:  Confinement physical, Battalion Aid Station, 1st Battalion, 6th Marines:
 reference made to Adjustment disorder diagnosed on 920629 but found fit
for confinement.
920710:  To confinement.

920803:  From confinement.



 930712:  Counseled for deficiencies in performance and conduct (frequent involvement with military authorities and violations of the UCMJ). Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

930922:  Counseled for deficiencies in performance and conduct (failure to maintain sufficient funds in account to cover checks, specifically check #141 for the amount of $14.85 written to Dominos Pizza). Sources of assistance provided, disciplinary warning issued.

940111:  NJP for violation of UCMJ, Article 86: UA (AWOL) from 0530 to 0945 on 931221, and from 1300 on 931227 to 1200 on 940105.
 Awarded forfeiture of $466.00 pay per month for 2 months (suspended for 6 months), restriction and extra duties for 45 days, reduction to E-2. Not appealed.
940209:  NJP imposed and suspended on 940111 for a period of 6 months is hereby vacated and the punishment is ordered executed this date.
940311:  NJP for violation of UCMJ, Article 86: At 1st Battalion, 6th Marines, fail to go at the time prescribed to restricted musters at 0700 and 0900 on 940116, at 0700, 0900, and 1100 on 940213;
 Article 91: At C Co, 1st Battalion, 6th Marines on 940116 and 940213, willfully disobeyed an order from 1stSgt M_, not to drink while on restriction;
Article 107: At C Co, 1st Battalion, 6th Marines at 0217 on 940130, wrongfully wrote and signed a false official statement to deceive his Company Commander.
Awarded forfeiture of $416.00 pay per month for 2 months, restriction and extra duties for 45 days, reduction to E-1. Not appealed.
940420:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service under other than honorable conditions by reason of misconduct due to a pattern of misconduct.
940420:  Applicant advised of rights and having elected not to consult with qualified counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

940420:  Commanding Officer, 1st Battalion, 6th Marines recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct. The factual basis for this recommendation was the respondent’s summary court-martial conviction of 920710 and his three nonjudicial punishments conducted on 920326, 940111, and 940311.

 Commanding Officer comments: "Based on enclosures (2) through (5), it is my opinion that a discharge under other then honorable conditions is warranted. Retention of the respondent would adversely affect the morale, discipline, and military effectiveness of this organization."
940517:  SJA review determined the case sufficient in law and fact.

940519:  GCMCA (Commander, 2d Marine Division, MARFORLANT) 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 19940526 under other than honorable conditions for misconduct due to a pattern of misconduct (A and B). 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 (C and D).

The Applicant contends that his discharge was inequitable as he suffered from bipolar disorder, which he implies is the cause of his misconduct. The record shows that the Applicant was seen by his command's medical officer on 19 920616 for manic depression; then by a medical officer at the Mental Health Clinic, Naval Hospital, Camp Lejeune, NC on 19920629 where he was diagnosed with "Adjustment disorder without characteristics"; and again by his command's medical officer on 19 920710, where reference is made to his mental health diagnosis. In each case, the Applicant was found fit for full duty. There is no indication in the record to suggest that the Applicant was not responsible for his misconduct or that he should not be held accountable for his actions. The Applicant did not submit evidence of a post-service diagnosis of Bipolar Disorder; regardless, any such evidence would not mitigate the conduct for which he was discharged. Relief on this basis is denied.

The Applicant is advised that a Marine may be administratively processed for separation due to a pattern of misconduct when there has been a minimum of two incidents occurring within one enlistment involving conduct prejudicial to good order and discipline (the incidents not having to result in NJP). In the Applicant's case, the record shows:
o        award of nonjudicial punishment (NJP) on 19 920326, 19940111, and 19940311 for violations of UCMJ Articles 86 Unauthorized absence (2 total specifications), 91 Insubordinate conduct, 107 False official statements, and 121 Larceny;
o        conviction at a summary court-martial for violations of UCMJ Articles 121 Larceny and 134 False pretenses, obtaining services under;
o        page 13 counselings on 19 930712 and 19930922 for continued deficiencies in performance and conduct ; and
o        a retention warning on 19930712.
Whenever a Marine is involved in such misconduct, commanders shall process the Marine for separation. Normally, a procedural impropriety or inequity must have occurred during this discharge process for the Board to permit relief. The Board discovered no impropriety after a review of Applicant’s case. Relief on this basis is denied.

The Applicant states that he wishes to reenlist in the Marine Corps Reserves. The Applicant is advised that the NDRB has no jurisdiction over reenlistment into the Marine Corps or any other branch of service. An unfavorable characterization of service and/or reenlistment code is, in itself, not a bar to reenlistment. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter. Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.

The following is provided for the edification of the Applicant. 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 Naval service. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review. Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities. As of this time, the Applicant has not provided any post-service documentation for the Board to consider. Relief of this basis is 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. 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 P1900.16D), effective 27 Jun 89 until 17 Aug 95.

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 any of the following Articles of the UCMJ: 91 Willfully disobeying noncommissioned officer; 107 False official statements; 121 Larceny; or 134 False pretenses, obtaining services under.
C. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety .

 D. 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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