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USMC | DRB | 2005_Marine | MD0500975
Original file (MD0500975.rtf) Auto-classification: Denied


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

ex-PFC, USMC
Docket No. MD05-00975

Applicant’s Request
The application for discharge review was received on 20050516. 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.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20051012. After a thorough review of the available 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 and reason for discharge shall not change. The discharge shall remain General (Under Honorable Conditions) by reason of misconduct due to a pattern of misconduct.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“I am requesting an upgrade so I can receive benefits that I have been denied due to current status. I feel the characterization and reason for separation is unjust due to personal conflicts between ones self and command. I always found away to get things done faster and better. My command did not listen to comments made during N.J.P. hearings I requested help for problems and personal issues in which I was denied the help I requested
My command labeled me to be a threat to myself and the members of my team
My command also accused me of causing a M.V.A. in order to miss a movement and avoid a training exercise as well as causing personal injuries to avoid training.”

 Applicant’s Remarks: (Taken DD Form 293)

“through all injuries and bodily damage sustained I was willing and impatiently awaiting the next movement and training opp. No injury or accuring pain was going to slow me down or prevent me from doing my job as an infantry assault gunner even as the lowest billet I put forth all possible effort to maintain the safty of my team and fellow marines under any conciquence of what happened to me
I swore to hold my head high for honor, courage and comitmen and I did.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (Member 4)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    20020115 – 20020623               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 20020624             Date of Discharge: 20040903

 Length of Service (years, months, days):

 Active: 02 02 10
         Inactive: None

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

 Age at Entry: 19

 Years Contracted: 4

Education Level: 12                                 AFQT: 65

 Highest Rank: PFC                                   MOS: 0351

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.0 (5)              Conduct: 3.7 (5)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): National Defense Service Medal, Rifle Expert Badge, Combat Action Ribbon, Global War on Terrorism Expeditionary Medal, Sea Service Deployment Ribbon (w/1*), Presidential Unit Citation


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 :

030521:  NJP for violation of UCMJ, Article 92: Did at 3d Bn, 4 th Marines on or about 0030 on 030318 disobey a lawful order to wit: Placed weapon in condition 3 and threatened camp guard.
 Award: Forfeiture of $301.00 pay per month for 1 month, restriction and extra duty for 14 days. Not appealed.

 0308xx:  Applicant counseled on recommendation for promotion to LCpl being withheld for the month of August because of no initiative; bad judgment, insufficient MOS proficiency, despite the Applicant’s eligibility.

030917:  Counseling: Advised of deficiencies in performance and conduct (Violation 91, insubordinate conduct toward a noncommissioned officer. Specifically on 030903 you became argumentative and disrespectful toward an NCO during a unit urinalysis test), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

030918:  Applicant counseled on recommendation for promotion to LCpl being withheld for the month of October because of his pending NJP, despite the Applicant’s eligibility.

031015:  NJP for violation of UCMJ, Article 91 (2 Specs):
         Specification 1: Did at 3d Bn, 4 th Mar on or about 030903 show insubordinate conduct towards an NCO to wit: Argued with a NCO over a urinalysis test.
         Specification 2: Did at 3d Bn, 4 th Mar at or about 2230 on 031010 show insubordinate conduct towards a staff noncommissioned officer.
 Violation of UCMJ Article 89:
Specification: Was at 3d Bn, 4 th Mar at or about 2230 on 031010 disrespectful to a commissioned officer.
Violation of UCMJ Article 92:
Specification: Did at 3d Bn, 4 th Mar at or about 2230 on 031010 disobey an order or regulation to wit: locked in the female head.
         Award: Forfeiture of $515.00 pay per month for 2 months, correctional custody for 30 days and reduction to E-1. Not appealed.

040226:  Medical evaluation by 7 th Regimental RAS; Regimental Psychologist:
         MPI: SNM reports recent NJP about being told he would have his weapon taken away due to self-mutilative behavior and responding by disrespecting an NCO and throwing down his K-bar knife reportedly near his feet. SNM reports prior NJP’s for missing formation to an evolution after “rolling” his truck while visiting his girlfriend; and (2) pulling a pistol on a guard. Reportedly in this 1 st of 3 NJP’s. [unreadable] OIF was not happy with a guard who didn’t “challenge him upon return and then requesting to see the COG, was dismissed in his concerns. SNM states he was exceptionally angry and pulled his weapon out at the COG, but intended to shoot himself out of anger and not the COG by report. He then reportedly gave the pistol to a peer and walked away so as not to harm himself or others. Accordingly, via NJP’s, he is currently an E-1 rank. SNM reports longstanding history of self-motivation to include carving with a knife on his forearms and leg, burning his hands at times with fire, cigarettes, and engaging in more than 40 fights in his life (history replete with injuries and stitches). SNM states that he frequently feels “bored” and empty or numb inside and becomes self-injurious or reckless to avert these feelings. Positive fire settings (fields, dumpsters); Positive suspensions – expulsions from schools (truancy, fighting); Positive theft (1-2 times shoplifting); Positive anger episodes of punching walls-damage and property destruction. SNM reports frequent suicidal ideations almost in an entertaining manner to himself but denies adamantly any concrete plans or intent. In one instance, he reports sitting atop a 2 story building and then falling off, but denies intent. Currently, SNM reports liking his job in the USMC as a “rocket launcher” because of its demolition properties but states that he loves to “run free” as frequently feels trapped or “confined” in the USMC which irritates him. He sees future problems in the USMC continuing for him as a result.
         Assessment:
          AXIS I: (v71.09) No Dx
         AXIS II: (301.9) Personality Disorder NOS with borderline and anti-social features (prominent)
         AXIS III: None
         AXIS IV: Occupational problems
         AXIS V: GAF = 55
         Plan: 1. Prompt administrative separation from the USMC is strongly advised. SNM is not mentally ill, but has a personality disorder of character and behavior that is severe, EPTE, maladaptive and of such a nature that he will not profit from the good order and discipline or supervision of his superiors. Although the SNM is not presently considered to be suicidal or homicidal, he is judged to represent a continuing risk to self or others if retained in the USMC. Further, given his history (2 NJP’s in 1.5 years) and characterlogical incompatibility with the USMC, continued service will cause additional legal and/or administrative problems, potentially exacerbating psychiatric problems as well. 2. SNM is not suicidal/homicidal, and agrees to contingency with BAS medical should he become so. He understands the consequences for his actions and is accountable for his behavior. 3. Discussed with 3/4 battalion M.O. (Dr. C_) and 3/4 Battalion C. O. (LtCol M_) who concurred with above and will moderate access to weapons as indicated. 4. SNM can RTC as needed.
040309:  Commanding Officer of Company L, 3D Battalion, 4 th Marines, 1st Marine Division (REIN) informed Commanding Officer, 3d Battalion 4 th Marines: “Private M_ (Applicant) has consistently displayed a pattern of misconduct. On more than one occasion when tasked, he has chosen to disobey his chain of command and leave his assigned place of duty. Additionally, the command has confiscated knives from Private M_ (Applicant) on at least two occasions because of his tendency to purposely cut himself. Private M_ (Applicant) admittedly has problems with authority and often chooses not to comply with superiors because it does not suit him. His irrational actions breed a level of distrust amongst his peers in his ability to handle during current Stability and Support operations in Iraq. This also negatively impacts the unit’s esprit de corps and morale. Given his emotional instability, Private M_ (Applicant) places all around him at risk.
         Private M_ has no potential for further service. Naval Psychiatrists have diagnosed him with Severe Interpersonal Disorder recommending his discharge from the service. In lieu of the unit’s current operations in Iraq, his presence may prove detrimental to the units overall mission in theater. His clinically diagnosed psychological problems render him ineffective to this or any unit in which he may be placed. I recommend Private M_ for administrative separation from the Marine Corps at the earliest opportunity. His entire chain of command has made every attempt to salvage him for future service, but he has not displayed any effort or desire to continue. Private M_ (Applicant)’s psychological issues and aversion to authority cannot be effectively managed within the operating forces.”

040310:  Counseling: Advised of deficiencies in performance and conduct (Regarding Private M_ (Applicant) personality disorder, lack of potential for further service, and administrative separation), necessary corrective actions explained and advised that a recommendation for administrative discharge due to personality disorder will be forwarded to GCMCA.

040726:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct, specifically pattern of misconduct and a personality disorder. The least favorable recommendation possible is under other than honorable conditions. The factual basis for this recommendation was due the Applicant being a detriment to the unit and having continued to display a pattern of misconduct. On February 26, 2004, Lieutenant Commander G. B. H_ assessed the Applicant with a personality disorder and recommended separation.

040727:  Counseling: Advised of deficiencies in performance and conduct (an established pattern of misconduct and personality disorder as evidenced by multiple derogatory counseling entries, two NJP’s, and my medical assessment), necessary corrective actions explained, sources of assistance provided, and advised being processed for administrative discharge action.
040727:  Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

040809:  SJA review determined the case sufficient in law and fact.

040819:  Commanding General, Marine Air Ground Task Force Training Command, Marine Corps Air Ground Combat Center advised the Commandant of the Marine Corps (MMSB), Quantico, VA that the Applicant will be discharged under honorable conditions by reason of convenience of the government, specifically pattern of misconduct.

Service Record Book contains a partial Administrative Discharge package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20040903 by reason of misconduct due to a pattern of misconduct (A and B) with a service characterization of general (under honorable conditions). After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D). The Board presumed regularity in the conduct of governmental affairs (E).

 When a Marine’s service 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 a retention warning and two nonjudicial punishment proceedings for violations of Articles 89, 91 and 92 of the UCMJ. Violations of Articles 89, 91 and 92 are serious offenses. The Applicant’s recommendation for promotion was withheld on two occasions due to the Applicant’s misconduct, bad judgment, MOS proficiency and lack of initiative. 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 improper due to “personal conflicts between” himself and his command, that his Commanding Officer did not listen to “comments made during [sic] NJP hearings.” The Applicant further contends that he was accused of missing movement through a motor vehicle accident and causing personal injuries to avoid training. There is no evidence in the record, nor did the Applicant provide any evidence, to support the contention that his command acted improperly or inequitably in the Applicant’s nonjudicial punishment proceedings or subsequent administrative separation. The Applicant’s misconduct is well documented and meets the criteria for discharge by reason of misconduct due to a pattern of misconduct. Relief denied.

The Applicant contends that he was denied help for his personal issues at that his command “labeled” him a threat to himself and others. There is no evidence in the record, nor did the Applicant provide any evidence, to support the contention that the Applicant was denied help for his personal problems. On 20040226, the Applicant was diagnosed by competent medical authority as having a personality disorder and deemed to be a continuing risk to himself and others. The medical authority recommended the Applicant’s prompt administrative separation. Relief on this basis is not warranted.

 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 employment or 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. 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 89, disrespect toward a superior commissioned officer, Article 91, insubordinate conduct toward a noncommissioned officer and Article 92, failure to obey an order/regulation.
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 .

E. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs .


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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