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


FOR OFFICIAL USE ONLY


ex-PFC, USMC
Docket No. MD05-00791

Applicant’s Request

The application for discharge review was received on 20050404. 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 the Veterans of Foreign Wars.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20051006. 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 in lieu of trial by court-martial.

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PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application and from an attached document/letter to the Board:

“1. I was so close to finishing my tour that it was unfair to give me a bad discharge - (A92.18) It was improper because it was based on incidents @ the end of 46.5 months of military service with no other adverse actions prior to/during my service while deployed to the Gulf in Operations Desert Shield/Storm.

2. My record of promotions showed I was generally a good service member - (A92.12). Incidents my discharge was based on were “out-of-character” in respect to my character and demeanor of preservice civilian life and military service prior to the end service in Operations Desert Shield/Storm.

3. My conduct and efficiency ratings/behavior and proficiency marks were mostly pretty good – (A92.02) The incidents that were the basis for my discharge were determined by: questioning my value as a marine; expected cuts in Marine Corps Man power; more than punishing me to send a message to the rest of G-3/11 Marines instead of acknowledgement and evaluation of the problem(s) that affected my actions and demeanor post operations Desert Shield/Storm.

4. My Discharge was improper because I have not been able to “Benefit” by “quickly moving out of the Marine Corps and getting on with my life” as is indicated by the past 13 yrs. of my life since discharge. I have been on the streets @ times, from family member to family member; to anybody that would take me in; from job to job with an inability to get along with others or to think straight or make proper decisions. Any stress-related incidence increases my frustration level and I Become unable to control my anger/or make the appropriate decisions in regard to my self-care both mentally and physically. Medications help to stabilize my condition but I am still disabled and dependent on others and my parents to advise and help me - even with the completion of this Review. My parents are B_ J. S_, Sr. and C_ E. S_ and I live with them @ (address deleted).

5. I had combat service (A92.08) my discharge was improper because of the indescribable stress experienced by others and myself in “G-3/11” marines during and on return from deployment in the Gulf-Operations Desert Shield/Storm. I realized that something was wrong with others and myself but not knowing “what?” - the black smoke inhalation? possible exposure to gas/chemical agents? The weird feelings after taking those anti-gas pills? along with stress of doing protective gear from continuous threats/warnings re: gas/chemical agents, stress of actually being lit-up by friendly fire, and the suicide in the barracks @ Twenty-nine Palms California pushed my stress levels to the limits.

6. I received awards and decorations (A92.04) as listed:
Combat Action Ribbon.
Southeast Asia Service Medal with two Stars.
Kuwaiti Liberation Medal
National Defense Medal
Sea Service Deployment Ribbon
2 ^nd Award Rifle Expert Badge
Good Conduct Medal (04-09-92)
In all due respect, I ask you to please consider my feelings regarding the impropriety of these incidents and understand considering my condition that I did seek help early on @ the V.A. Hospital in Atlanta, Georgia and even though I have to rely on others for help and guidance and do not understand what has happened to me, I do know that I voluntarily returned to my base @ Twenty-Nine Palms, California because it was the right thing to do and I know that I gladly served in defense of my country and in the Liberation of Kuwait as a Marine of the United States Marine Corps with pride, honor, and dignity and therefore I seek a change in my discharge to upgrade to Honorable.”

Additional issues submitted by Applicant’s counsel/representative (Veterans of Foreign Wars):

“Propriety or Equity Issue(s): The Applicant has been diagnosed schizophrenia, personality disorder, and major depressive disorder- all of which began after his participation in Op Desert Storm and contributed to his numerous infractions of the UCMJ.

Statement: In accordance with 32 CFR 724, and SECNAVINST 5420.173D, 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.

Mr. S_ (Applicant) served in the USMC from Sep. 14, 1988 to July 30, 1992. He is a combat veteran and has been awarded the Combat Action Ribbon, the South West Asia Service Medal with 2 Bronze Service Stars, the Kuwait Liberation Medal, the National Defense Service Medal, the Good Conduct Medal and the Sea Service Deployment Ribbon. He participated in Op Desert Shield from Aug. 16, 1990 to Jan. 16, 1991 and Op Desert Storm from Jan. 17, 1991 to Mar. 23, 1991.

Mr. S_ (Applicant) received non-judicial punishment for numerous violations of the UCMJ- most stemming from periods of unauthorized absence. He has one charge of using THC. He had proficiency and conduct marks of 4.2 and 4.1 respectively.

Mr. S_ (Applicant) has been diagnosed post-service as suffering from schizophrenia, personality disorder, poly-substance abuse, and major depressive disorder. His Global Assessment of Function (GAF) score is 35. Mr. S_ (Applicant) is incapable of handling his own affairs, and relies on his parent’s charity for sustenance. His father has been awarded guardianship of Mr. S_ (Applicant)’s finances. He has been homeless since his discharge.

Substance abuse, an inability to meet basic expectations and homelessness are classic symptoms of Post Traumatic Stress Disorder. Enclosed is a chart from a professional health care development manual distributed by the Department of Veterans Affairs for the benefit of their physicians and primary care providers. The clinical presentations of Post Traumatic Stress Disorder include depression, substance abuse, anxiety, irritability, avoidance, non-compliance, homelessness, and isolation. Mr. S_ (Applicant) exhibits many of these traits.

Mr. S_ (Applicant)’s violations of the UCMJ were inexcusable, but if they are manifestations of Post Traumatic Stress Disorder then his discharge is inequitable. Mr. S_ (Applicant) is ineligible for treatment by the VA because of the nature of his less than honorable discharge.

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:

Algorithm for Assessment of trauma symptoms in veterans (unknown origin)
Applicant’s DD Form 214 (2)
Twenty-five pages from Applicant’ service record
Handwritten chronology of medical appointments
Nine pages of post-service medical records
Notice of decision from Social Security Administration, dtd April 27, 2000 (12 pages)
Letter from J. G_ T_, attorney at law, to Social Security Administration, dtd May 26, 2000
Memorandum for Persian Gulf War veterans, dtd May 25, 1994
Amplifying Instructions, Treating health problems of Persian Gulf Veterans, dtd June 9, 1994
Letter from Office of the Secretary of the Defense with fact sheet, dtd December 3, 1998 (3 pages)
Letter to Applicant’s parents from Capt, 3 ^rd Battalion, 11 ^th Marines, 3 ^rd Marine Division, dtd April 17, 1990
Letter to Applicant’s parents from Capt, 3 ^rd Battalion, 11 ^th Marines, 3 ^rd Marine Division, dtd November 12, 1989
Character Reference ltr from J_ T. W_ Sr., dtd February 3, 2005
Character Reference ltr from P_ C_, former principal, Johnson High School, dtd January 27, 2005
Letter from B_ S_, Licensed Associate Professional Counselor, Hall County Mental Health, Georgia Mountains Community Services, dtd February 3, 2005 (2 pages)
Character Reference ltr from J_ V_ and B_ V_, dtd January 25, 2005

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PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

         Inactive: USMCR (DEP)    199871002 - 19880913     COG
         Active: None

Period of Service Under Review :

Date of Enlistment: 19880914             Date of Discharge: 19920730

Length of Service (years, months, days):

Active: 03 10 17 (Does not exclude lost time.)
         Inactive: None

Time Lost During This Period (days):

         Unauthorized absence: 39 days
         Confinement:              Unknown

Age at Entry: 18

Years Contracted: 4

Education Level: 12                                 AFQT: 37

Highest Rank: LCpl                                  MOS: 2512

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency: 4.2 (7)                                Conduct: 4.1 (7)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): Combat Action Ribbon, Southwest Asia Service Medal (w/2 Stars), Kuwaiti Liberation Medal; National Defense Service Medal, Good Conduct Medal, Sea Service Deployment Ribbon (2nd Award), Rifle Expert Badge

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

UNDER OTHER THAN HONORABLE CONDITIONS/Conduct triable by courts-martial (request for discharge for the good of the service), authority: MARCORSEPMAN Par. 6419

Chronological Listing of Significant Service Events :

870826:  Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.

900216:  NJP for violation of UCMJ, Article 86.
         Specification: In that LCpl S_ (Applicant), did, at Camp Tamez, on or about 1600, 900210 without authority, did fail to go at the time prescribed to his appointed place of duty, to wit: Btry G, 3dBn, 11thMar, 3dMarDiv.
         Award: Forfeiture of $207 per month for 1 month, restriction and extra duty for 14 days. Forfeiture suspended for 6 months. Not appealed.

900307:  Forfeiture of pay awarded at NJP on 900216 vacated due to continued misconduct.

901001:  Acknowledged understanding of eligibility but non-recommendation for promotion to Cpl for the month of Oct because of lack of knowledge. Applicant chose not to make a statement.

901101:  Acknowledged understanding of eligibility but non-recommendation for promotion to Cpl for the month of Nov because of lack of leadership/knowledge. Applicant chose not to make a statement.

910701:  Acknowledged understanding of eligibility but non-recommendation for promotion to Cpl for the month of July because of lack of leadership/initiative/attention to detail. Applicant chose not to make a statement.

910901:  Acknowledged understanding of eligibility but not recommended for promotion to Cpl for the month of Sep because of lack of knowledge. Applicant chooses to make a statement.

920113:  Applicant to unauthorized absence at 1700 on 920113.

920115:  Applicant from unauthorized absence at 0700 on 920115 (2 days/surrendered).

920220:  Applicant to unauthorized absence on 920220.

920307:  Applicant from unauthorized absence at 0800 on 920307 (15 days/surrendered).

920408:  NJP for violation of UCMJ, Article 112a: At 3dBn, 11 ^th MarDiv, 29 Palms, CA, did on or about 0800, 920319 use some amount of THC.
Violation of UCMJ, Article 86: Did on or about 0730, 920220-1930, 920306 make himself UA.
         Award: Forfeiture of $400 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2. Not appealed.

920502:  Applicant to unauthorized absence on 920502.

920526:  Applicant from unauthorized absence at 0630 on 920526 (24 days/surrendered).

920526:  Applicant to pretrial confinement.

920617:  Charges preferred for Charge I: Violation of the Uniform Code of Military Justice (UCMJ) Article 86: Specification 1: In that Private First Class D_ A. S_ (Applicant), U.S. Marine Corps, 3d Battalion, 11 ^th Marines, 1 ^st Marine Division (Rein), FMF, on active duty, did, at Marine Corps Air Ground Combat Center, Twentynine Palms, California, on or about 0600, 28 April 1992, without authority, failed to go at the time prescribed to his appointed place of duty next to building #1403. Specification 2: In that Private First Class D_ A. S_ (Applicant), U.S. Marine Corps, 3d Battalion, 11 ^th Marines, 1 ^st Marine Division (Rein), FMF, on active duty, did, on or about 2 May 1992, without authority, absent himself from his unit, to wit: 3d Battalion, 11 ^th Marines, Regimental Combat Team Seven, 1 ^st Marine Division (Rein), FMF, located at Marine Corps Air Ground Combat Center, Twentynine Palms, California, and did remain so absent until on or about 26 May 1992. Charge II: Violation of the Uniform Code of Miltiary Justice, Article 91: In that Private First Class D_ A. S_ (Applicant), U.S. Marine Corps, 3d Battalion, 11 ^th Marines, 1 ^st Marine Division (Rein), FMF, while on active duty, having received a lawful order from Corporal J. D. S_, U.S. Marine Corps, a noncommissioned officer, then known by the said Lance Corporal S_ (Applicant) to be a noncommissioned officer, to “get up out of your rack and start on your wall locker”, or words to that effect, an order which it was his duty to obey, did, at Marine Corps Air Ground Combat Center, Twentynine Palms, California, on or about 23 April 1992, willfully disobey the same.

920623:  Charges referred to special court-martial.

920623:  Applicant, having consulted with counsel, requested discharge for the good of the service to escape trial by court- martial. In the request the Applicant noted that his counsel had fully explained the elements of the offenses for which he was charged and that he understood the elements of the offenses. He further certified an understanding that the characterization of service would be under other honorable conditions. The Applicant admitted guilt to the following Charge I: violation of the UCMJ, Article 86 (2 specs): Spec 1: Failed to go to appointed place of duty. Spec 2: Unauthorized absence from unit from 2May92 to 26May92 and Charge II: violation of the UCMJ, Article 91: Disobeyed a lawful order.

920706:  SJA review determined the case sufficient in law and fact.

920710:  GCMCA, Commanding General, 1 ^st Marine Division (Rein), FMF, Camp Pendleton, CA, directed the Applicant's discharge under other than honorable conditions in lieu of trial by court-martial.

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PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19920730 in lieu of trial by court-martial (A and B) with a service characterization of under other than honorable conditions. 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).

In a signed statement, the Applicant requested an administrative discharge under other than honorable conditions in lieu of a trial by court-martial. He consulted with counsel and was fully advised of the implications of his request. The Applicant stated he understood the elements of the offenses with which he was charged. He admitted he was guilty of violating Article 86: Spec 1: Failed to go at the time prescribed to his appointed place of duty on 19920428. Spec 2: Unauthorized absence from 19920502 until 19920526 and Article 91: Willfully disobey a lawful order. An under other than honorable conditions 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. In addition to the misconduct which precipitated the Applicant’s request for separation in lieu of trial, the Applicant’s service was marred by two nonjudicial punishment proceedings for violations of Articles 86 and 112a of the UCMJ. The Applicant’s award at NJP suspended on 19900216 was vacated on 19900307 due to the Applicant’s misconduct. Violations of Article 91 and 112a are considered serious offenses. 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 Marine Corps and falls far short of that required for an upgrade of his characterization of service. Relief is not warranted.

The Applicant contends that his discharge was unfair because he was close to the end of his tour. Members are required to comply with the UCMJ throughout their enlistment. The Applicant had charges preferred against him for his violations of Articles 86 and 91. Violations of Article 91 considered serious offenses. As a result of the charges preferred against him, the Applicant requested discharge in lieu of trial. Relief on this basis is not warranted.

The Applicant contends that his record of promotions showed he was a good service member and that the incidents that lead to his discharge were out of character. The record shows the Applicant was not recommended for promotion on numerous occasions for a lack of leadership and knowledge and lack of initiative and attention to detail. The Applicant’s earliest non-recommendation for promotion was in October of 1990, almost two years prior to his discharge. Relief on this basis is not warranted.

The Applicant contends that his proficiency and conduct marks were “pretty good” and that the basis for his discharge was to “send a message” and because of “expected cuts in Man power.” The Board recognizes that the Applicant’s average proficiency and conduct marks met the minimum criteria for an honorable discharge if the Applicant had completed his enlistment. However, the Board determined that there was no evidence that the Applicant’s discharge was improper or inequitable on this basis. The Applicant requested discharge in lieu of trial and that request was granted. There is no evidence in the record, nor did the Applicant provide any evidence to support the contention that the Applicant’s Commanding Officer or anyone involved in the separation processing acted improperly. Relief denied.

The Applicant contends that his discharge was improper because he has not been able to “benefit” by “getting on with his life.” The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment, educational opportunities or post-service desires to “benefit” by a former member. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. The Board found that the Applicant’s post-service inability to benefit from his discharge was not evidence of an improper or inequitable discharge. Relief denied.

The Applicant contends that he had combat service at that his discharge was improper because of the stress he experienced. While he may feel that his stress was the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service. The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.

The Applicant contends though his representative that if his misconduct is the result of Post Traumatic Stress Disorder than his discharge is inequitable and that, because of his less than honorable discharge, the Applicant is ineligible for treatment by the VA. The Applicant provided post-service documentation of a disability based on schizophrenia, personality disorder and substance abuse. When reviewing a discharge, the NDRB does consider the extent to which a medical problem might affect an Applicant’s performance and ability to conform to the military’s standards of conduct and discipline. There is no evidence in the record to suggest that Applicant was not responsible for his misconduct or that he should not be held accountable for his actions. Additionally, 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. Relief denied.

The following is provided for the edification of the Applicant. Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question. The Board discovered no impropriety after a review of Applicant’s case. 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, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities. As of this time, the Applicant has not provided sufficient post-service documentation for the Board to consider. 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 6419, SEPARATION IN LIEU OF TRIAL BY 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 91, insubordinate conduct and 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 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 .

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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