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USMC | DRB | 2005_Marine | MD0500786
Original file (MD0500786.rtf) Auto-classification: Denied


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
 DISCHARGE REVIEW
DECISIONAL DOCUMENT
FOR OFFICIAL USE ONLY

ex-Pvt, USMC
Docket No. MD05-00786

Applicant’s Request
The application for discharge review was received on 20050330. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable. The Applicant requests a documentary record discharge review. The Applicant did not designate a representative on the DD Form 293. Subsequent to the application, the applicant obtained representation by Veteran of Foreign Wars.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 20051221. 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 as a bad conduct discharge by reason of court-marital.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“I was diagnosed as manic depressive while in the USMC at NAMALA, and I feel that I should of had a medical review board, and review a medical discharge. I was not put on any medications and I resulted to self medicating myself to try to make the depressive issues better so I could try to function on a daily basis. I believe that if I would have received the proper medical treatment (mental health) that I would of have counseling and correct medication to help control the issue of manic depressiveness, and better observation of the medications I was on. It should not have taken 4 years for the USMC to discharge me. During this time I received no pay during the 4 years. If I was separated in 2000 then block 12B of DD214 should reflect that not 2004.”


Additional issues submitted by Applicant’s representative Veterans of Foreign Wars:

 “Re-characterize discharge as Honorable.

Propriety or Equity Issue(s): The veteran’s judgment was impaired at the time he committed the infractions

Statement: In accordance with 32 CFR § 724, and SECNAVINST 5420.174D, the Veterans of Foreign Wars submits to the Naval Discharge Review Board (NDRB) the above issue and following statement in supplement to the Applicant’s petition

The applicant was afforded a Bad Conduct Discharge pursuant to the promulgation of a decision rendered by a Special Court-Martial.

The applicant is a recipient of the Good Conduct Medal, a Meritorious Unit Citation, the National Defense Service Medal (second award) and the Sea Service Deployment Ribbon (second award).

At the time of the applicant’s Court-Martial, he was examined by the psychiatric department at Naval Medical Center San Diego. The examiner diagnosed the applicant as suffering from Bipolar Disorder Type I (296.42) with an admission Global Assessment of Function of “21-30.” Under the DSM-IV standards for rating a patient’s Global Assessment of Function, the rating 21-30 indicates that the patient’s “behavior is considerably influenced by delusions or hallucinations OR serious impairment in communications or judgment… OR inability to function in almost all areas.” See the attached explanation of GAF from DSM-IV, 4 th Ed. , 8 th printing (1999).

The applicant’s record indicates that the professional opinion of the psychiatric examiner was that the applicant’s Bipolar Disorder contributed significantly to his behavioral problems. The examiner, a medical doctor, further opined that the applicant should be afforded a Physical Evaluation Board (PEB), rather than a Court-Martial.

The Veterans of Foreign Wars’ express purpose in providing this statement and any other submittals or evidence filed is to assist this applicant in the clarification and resolution of the impropriety or inequity raised. To that end, we rest assured that the NDRB’s final decision will reflect sound equitable principles consistent in law, regulation, policy and discretion as promulgated by title 10 USC § 1553, and set forth in 32 CFR § 724 and SECNAVINST 5420.174D.

This case is now respectfully submitted for deliberation and disposition.
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Narrative Summary from Naval Medical Center San Diego Mental Health Services (5 pgs)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    19940712 – 19940919               COG
         Active: USMC              19940920 – 19980527               HON

 Period of Service Under Review :
Date of Enlistment: 19980528             Date of Discharge: 20040730

 Length of Service (years, months, days):

 Active: 06 01 20 (Excludes lost time)
          Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: none
         Confinement:              12 days

 Age at Entry: 24

 Years Contracted: 3

 Education Level: 12                                 AFQT: 56

 Highest Rank: Cpl                                   MOS: 0311

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.3 (3)                       Conduct: 4.0 (3)

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): Rifle Sharpshooter Badge, National Defense Service Medal (2), Sea Service Deployment Ribbon (2), Marine Corps Good Conduct Medal, Meritorious Unit Commendation


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

 BAD CONDUCT DISCHARGE/COURT-MARTIAL, authority: MARCORSEPMAN Par. 1105.

 Chronological Listing of Significant Service Events :

980528:  Reenlisted this date for a term of 3 years.
981103:  Counseled for deficiencies in performance and conduct. [Alcohol related incident, creating a disturbance on the third deck of Marine BEQ II with three (3) LCpls and two (2) PFCs, 981102, behavior of a discreditable nature and unbecoming of a NCO.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

981124:  Acknowledged understanding of eligibility but not recommended for promotion to Sgt for December/ 4 th Quarter promotion period because of inappropriate behavior, poor judgment, and lack of maturity. Applicant chose not to make a statement.

990308:  NJP for violation of UCMJ, Article 134: Negligent discharge of firearm on or about 0800, 21 January 1999, at Building #403, Capodichino, Naples, Italy.
 Award: Forfeiture of $250.00 per month for 2 months, restriction and extra duty for 45 days, reduction to E-3. Appealed 990310. Appeal denied 990331.
990621:  NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 990611, tested positive for [THC].

9907xx:  Charges referred to summary court-martial for violation of Article 112a of the UCMJ: In that Lance Corporal N_ J. F_ (Applicant), U.S. Marine Corps, while on active duty, did, at an unknown location, between 27 May 1999 and 09 June 1999, wrongfully use marijuana (THC).

990720:          NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 990712, tested positive for [THC].

990903:  Medical evaluation, Mental Health Department, Naval Hospital, 29 Palms, CA: A military ps ychologist concluded that the member is unsuitable for military service due to a personality disorder. Administrative separation in accordance with U.S. Marine Corps Separation Manual 6203.3 and NAVMILPERSMAN 1910-122 is recommended. This member is not considered mentally ill and returns to full duty. SNM has a longstanding disorder of character and behavior with is of such severity as to interfere with this individual serving adequately in the military. A service record entry for personality disorder, accompanied with command level counseling, is recommended. If the member’s performance does not improve, it is recommended that the command consider appropriate administrative action, including separation from the military.
         AXIS I: Occupational Problems.
 AXIS II: Personality Disorder NOS with Cluster B features.
AXIS III: None reported. See medical record.
990906:  Charges referred to summary court-martial withdrawn after screening results were received by command indicating that the Lance Corporal F_ (Applicant) had tested positive for use of marijuana for a second time.

990910:  Charges referred to special court-martial for violations of Article 112a of the UCMJ:
 Specification 1: In that Lance Corporal N_ J. F_ (Applicant), U.S. Marine Corps, while on active duty, did, at an unknown location, between 27 May 1999 and 09 June 1999, wrongfully use marijuana (THC).
         Specification 2: In that Lance Corporal N_ J. F_ (Applicant), U.S. Marine Corps, while on active duty, did, at an unknown location, between 23 June 1999 and 06 July 1999, wrongfully use marijuana (THC).

990921:  Acknowledged understanding of eligibility but not recommended for promotion to Cpl for the promotion period of October, November, December 99 because of pending Court Martial. Applicant chose not to make a statement.

990921:  Counseling: Advised of deficiencies in performance and conduct (“Diagnosed Personality Disorder. This had a negative impact on your performance and the Marines with whom you work with/for. You have placed in a non-deployable status by the Commanding Officer, and have had your field duties and weapons removed from your possession. Your deficiencies are detrimental to, and do not contribute to the combat readiness of the unit.”), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

991001:  Applicant to pretrial restriction.

991013:  Special Court Martial [trial dates 991013, 991103, 991210 and 000214]
          Charge I: violation of the UCMJ, Article 112a (2 specifications):
          Specification 1: Did, between about 990527 and 990609 wrongfully use marijuana (THC).
         Specification 2: Did, between about 990623 and 990706 wrongfully use marijuana (THC).
         Plea to Charge I and specifications thereunder: Not Guilty*
 Findings to Charge I and specifications thereunder: Guilty excepting “(THC)”.
          *After arraignment, the military judge rejected the accused pleas of Guilty and the accused reentered the pleas of Not Guilty.
         On 000127, the Applicant was evaluated at Navy Medical Center, San Diego, CA. Opinion: “It is our opinion, with reasonable medical certainty, that LCPL F_ (Applicant) did not suffer from a severe mental illness at the time of the alleged offense, and was able to understand the nature and quality of the actions and their wrongfulness. Additionally he understands the nature of the proceedings against him.
         Sentence adjudged 000214: Confinement for 15 days, reduction to E-1, Bad Conduct discharge.
         CA 040101: The sentence approved and ordered executed, except for bad conduct discharge.
991215:          Acknowledged understanding of eligibility but not recommended for promotion to Cpl for the promotion period of January, February, March 2000 because of pending Special Court Martial for violation of article 112a. Applicant chose not to make a statement.

000214:  Joined Base Brig, Marine Corps Base, Camp Pendleton, California, for confinement.

000225:  From confinement, restored to full duty.

000609:  Applicant to voluntary appellate leave.

 010621:  NC&PB clemency not granted; restoration denied.

010304:  Applicant admitted to Naval Medical Center San Diego.

010331:  Applicant discharged from Naval Medical Center San Diego:
 “Formulation: A bad conduct discharge is pending for marijuana use. However, this was likely done to self-medicate in context of mania, and his BCD should be reconsidered since he does not have a history of maladaptive personality traits. There is a charge of battery against him as a civilian as well, though it appears no one, not even the supposed ‘victim,’ his brother, believes a battery was committed. Yet the police incarcerated him anyway. This is where the danger lies. When Mr. Fernandez becomes manic, he is easily irritated, raises his voice and becomes demanding. This could be misperceived by those not close to him or in the mental health profession, and an incident could easily occur where someone he is interacting with could misinterpret his intentions, and Mr. Fernandez could fin himself again in jail, without appropriate psychiatric attention, even though his behavior may not be entirely criminal.

AXIS I: (2196.42) Bipolar Disorder, Type I, current or most recent episode Manic, Moderate severity.
AXIS I: (305.20) Cannabis Abuse
AXIS II: Diagnosis Deferred
AXIS III: No diagnosis
AXIS IV: Problems with the primary support group. Occupational, economic and legal problems.
AXIS V (admission): 21-30 Behavior considerably influenced by delusions or dysperceptions, or serious impairment in communication or judgement
AXIS V (current): 51-60 Moderate symptoms or difficulty in functioning
AXIS V (highest): 51-60 Moderate symptoms or difficulty in functioning

Plan and Recommendations:
... It is understood that legal action is pending against the member, but The Medical Evaluation Board agrees with the above findings and is of the opinion that this service member suffers from a disorder as a consequence of which the individual is unable to perform further military duties, and, that the disorder was likely present during the events that led to his Bad Conduct Discharge. It is very probable that the member’s mental illness significantly affected his judgement regarding marijuana use and a 706 Board should be considered.

In accordance with Manual of the Medical Department, Chapter 18, the service member’s case should therefore be referred to the central Physical Evaluation Board for determination of fitness for duty, should the patient win his appeal against the Bad Conduct Discharge.” [Extracted from medical documentation provided by Applicant.]               

030619:  NMCCCA: Affirmed findings and sentence.

031103:  USCAAF: Petition for review denied.

040728:  SSPCMO: Article 71c, UCMJ, having been complied with, Bad Conduct discharge ordered executed.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20040730 with a bad conduct discharge which was the sentence adjudged by a properly convened special court-martial. That sentence was subsequently approved by both the convening and appellate review authorities (A and B). After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the Applicant’s issues were insufficient to merit clemency (C).

The Applicant contends that he should have had a medical review board. The Applicant also implies that he received improper medical treatment and that he should have received a medical discharge. In review of the Applicant’s case, the Board could find no improprieties or inequities in the Applicant’s service record. The Applicant is further advised that even if he had been eligible for a medical discharge, separations for misconduct supercede those for a medical discharge. Relief on the basis of the Applicant’s issues would be improper.

The Applicant is reminded that, regarding discharges adjudged by a court-martial case, the action of the NDRB is restricted to upgrades based on clemency. Clemency is an act of leniency that reduces the severity of the punishment imposed. Under the consideration of clemency, the Board did consider the Applicant’s medical evaluations. On 20000127 competent medical authority determined the Applicant was not suffering from a severe mental illness and understood the wrongfulness of his actions. The Board determined the Applicant’s evaluation on 20000127 and his post court-martial diagnosis for treatment provided from 20010304 to 20010331 did not show the Applicant was not responsible for his conduct or should not be held accountable for his actions. After a thorough review of the Applicant’s record and issues submitted the Board determined that clemency was not warranted and that the sentence awarded the Applicant at his court-martial was appropriate for the offenses he committed. 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 1105, DISCHARGE ADJUDGED BY SENTENCE OF COURT-MARTIAL , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 01 September 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 112a, wrongful use of a controlled substance.
C. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 205(2), Jurisdictional Limitations Authority for Review of Discharges.

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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