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USMC | DRB | 2005_Marine | MD0501227
Original file (MD0501227.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. MD05-01227

Applicant’s Request
The application for discharge review was received on 20050712. 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 designated Puerto Rican Veterans Association as the representative on the DD Form 293.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 20060316. 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 by reason of misconduct due to a pattern of misconduct.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION


Issues, as stated

The Applicant submitted no issues.

The Applicant’s representative submitted a letter to the Board, dated December 2, 2005, with the following issues:

“To whom it may concern,

These are attachments for the issues sheet your office sent dated November 15 2005. This packet also includes veteran’ statement, Mental Health Outpatient notes and letters from commanding officer of the Department of the Navy and the United States Marine Corp.

 Issue 1. Mr. K_(Applicant)’s discharge (separation) was not in any of the categories listed in the extract from 38 CFR 3.12 from the Department of Veterans Affairs.

Issue 2. The events that led up to Mr. K_(Applicant)’s discharge include the following:

a. United States Marine Corps letter dated July 23 2003.

b. United States Marine Corps letter dated July 23 2003 states in section 2c. Mr. K_(Applicant) had 2 months and 18 days left on his enlistment contract (991026-031025). I believe the Marine Corp should have put Mr. K_(Applicant) on TDRL.

Issue 3. Letter dated November 14 2002 from the Department of The Navy it is stated in section (1.) Mr. K_(Applicant) suffers from a personality disorder that is so severe that the Marine’s ability to function effectively in the military is significantly impaired. Then there is a contradicting statement in section (2.) “In the examiner’s opinion, the patient does not possess a severe mental disease.

This letter’s statements on Mr. K_(Applicant)’s personality disorder does not Include his diagnosis of Dysthimic Disorder which was diagnosed at the Mental Health Outpatient clinic at the Naval Hospital at Camp Lejeune, N.C. and does not include the fact that Mr. K_(Applicant) was seeking help as early as October of 2001.

If this is the case then the members personality disorder either originated from his military service or was exacerbated by his military service in which case he is deserving of compensation for his disabilities from the time he separated from the Marine Corp.
It seems that the veteran was unfit for further service and should have been offered a medical discharge.

Issue 4. Mental Health Outpatient Progress Notes, 3 pages.

The reasons I believe Mr. K_(Applicant)’s military service should be honorable are because he successfully completed Basic Training, after completing Boot Camp at Paris Island he successfully completed Military Occupational Specialty School and he also successfully completed Logistic Vehicle School.

He completed 3 years 9 months and 12 days of military service on a 4-year contract.

He received the National Defense Service Medal and a Meritorious Unit Commendation.

If his military service were dishonorable the Marine Corp would not have kept him in the military as long as they did. He was not court-martialed but administratively discharged.

His character of service when he received these disabilities was honorable.

I believe his military service was not dishonorable; it should be under honorable conditions.

His discharge bars him from receiving medical benefits, mental health attention through the VA Medical Centers and compensation.

Respectfully,
C_ A. S_
Case Manager”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Naval Hospital Camp Lejeune, Mental Health Outpatient Progress Note (SF-600),    Termination Summary, dtd September 16, 2003 (3 pgs)
Letter from Applicant, dtd November 7, 2005 (2 pgs)
Memorandum from Staff Judge Advocate, dtd July 23, 2003
Unit Punishment Book, NAVMC 10132, dtd October 24, 2002
Commanding Officer, Naval Hospital Camp Lejeune, NC, Recommendation for          Administrative Separation, dtd November 14, 2002

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    19990707 – 19991025               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19991026             Date of Discharge: 20030807

 Length of Service (years, months, days):

 Active: 03 09 12
         Inactive: None

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

 Age at Entry: 18

Years Contracted: 4

Education Level: 12                                 AFQT: 35

 Highest Rank: LCpl                                  MOS: 3521

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.5*                          Conduct: 3.2*

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): Rifle Expert Badge (2), National Defense Service Medal, Meritorious Unit Commendation.

* Extracted from SJA letter, dtd 030723.


Character, Narrative Reason, and Authority of Discharge (at time of issuance):
UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MARCORSEPMAN Par. 6210.3.

 Chronological Listing of Significant Service Events :

001003:  NJP for violation of UCMJ, Article 92: In that SNM did, on or about 0309, 000924 showed a BAC of a 0.16% while under the legal drinking age of 21.
 Violation of UCMJ, Article 111: In that SNM, did, on or about 0309, 000924, physically control a vehicle while his BAC was 0.16%.
          Award: Forfeiture of $200 per month for 2 months, (forfeiture of $200 pay per month for 1 month suspended for 6 months), restriction and extra duty for 30 days, reduction to E-1. Not appealed.

011004:  NJP for violation of UCMJ, Article 86: UA (AWOL) on or about 0630, 010920 absent himself from his appointed place of duty without proper authorization.
 Violation of UCMJ, Article 86: UA (AWOL) on or about 0600, 010912 absent himself from his appointed place of duty, to wit: morning formation.
Violation of UCMJ, Article 134: On or about 1445, 010911 wrongfully communicate to a NCO a threat.
         Award: Forfeiture of $272.00 per month for 1 month, restriction and extra duty for 14 days. Not appealed.

0110XX*:         Mental Health Outpatient Progress Note (SF-600) Naval Hospital Camp Lejeune, NC. Applicant diagnosed with a Dysthymic Disorder and Personality Disorder. Applicant continued in treatment on medication until late November 2001. Applicant intended to complete his enlistment. Mental status was within normal limits and he evidenced no suicidal or homicidal ideations. Applicant was scheduled for follow-up appointment in December 2001 but failed to keep that appointment. [* Extracted from a document provided by the Applicant. No specific date provided, only “October of 2001”.]

021008:  Counseling: Advised of deficiencies in performance and conduct (Applicant received CO NJP on 021008 for violation of Article 86 of the UCMJ. On 6 Sept 02 you failed to go at the prescribed time to your appointed place of duty, company formation, and did not show up until 0700.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

021008:  NJP for violation of UCMJ, Article 86: In that LCpl K_, did on or about 0545, 020906, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: Company formation, and did remain so absent until on or about 0700, 020906.
         Award: Forfeiture of $323.00 per month for 1 month, restriction and extra duty for 14 days. Not appealed.

021031:  NJP for violation of UCMJ, Article 86: In that LCpl K_, on or about 0445, 021025, without authority, absent himself from his place of duty at which he was required to be, to wit: Platoon formation, located at FC 270 FMCA, HCM Platoon and did remain so absent until on or about 0645, 021025 when a fellow marine was sent to get him.
 Violation of UCMJ, Article 91: In that LCpl K_, on or about 0930, 021027, was belligerent and disrespectful in language and posture toward SGT T_ (DNCO) a non commissioned officer, who was in the execution of his office by saying “he did not give a f_ about what he said””and wasn’t going to what he said” or words to that effect.
Violation of UCMJ, Article 134: (2 specs), Spec 1: In that LCpl K_ was at FC 550 on or about 0930, 021027 drunk and disorderly on the second deck catwalk which conduct was of a nature to bring discredit upon the armed forces; Spec 2: In that LCpl K_ was at FC 550 on or about 0930, 021027 while on the second deck catwalk willfully expose, in an indecent manner to the public view, his penis while urinating off of the catwalk.
         Award: Forfeiture of $619 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2. Reduction to E-2, forfeiture of $619 per month for 2 months suspended for 6 months, unless sooner vacated. not appealed.

021106:  Counseling: Advised of deficiencies in performance and conduct (Violation of Article 86, 91, and 134 x 2. Where you were UA from your appointed place of duty on 25 Oct 02 by failing to report to your platoon formation on time. Applicant were belligerent and disrespect to the DNCO on 020127 and were drunk and disorderly on the second deck of FC 550 and proceeded to indecently expose yourself while urinating off of the second deck catwalk. These incidents are unacceptable and will not be tolerated. Applicant failed to take corrective action from your previous counseling’s 6105 entries in your SRB, and the plethora of formal platoon level counseling’s in your counseling folder.), necessary corrective actions explained and sources of assistance provided. Applicant advised that he is being processed for administrative separation due to a pattern of misconduct.



021114*:         Commanding Officer, Naval Hospital Camp Lejeune, NC, recommendation for the Applicant’s administrative separation. Under Articel 15-23 of the MANMED, the Applicant suffers from a personality disorder that is so severe that the Marine’s ability to function effectively in the military is significantly impaired. The Applicant is not mentally ill and is responsible for his behavior. The Applicant does manifest a long-standing disorder of character and behavior which is of such severity as to interfere with his ability to function effectively in the military environment. The Applicant has adjusted poorly to the demands of military service and is unmotivated for continued military service despite appropriate leadership, counseling, discipline and other methods. Although not imminently suicidal or homicidal, the member poses a continuing risk to do harm to self or others and negatively impact unit effectiveness and morale if retained in naval service. Therefore, it is strongly recommended that the member be processed for an administrative discharge in accordance with MARCORSEPMAN paragraph 6203.3 by reason of unsuitability. The Applicant has been offered supportive follow-up in the Mental Health Clinic pending processing for separation. In the examiner’s opinion, the Applicant does not possess a severe mental disease or defect for purposes of R.C.M. 706 examinations and is considered competent. [* Extracted from document provided by the Applicant].

021122:  NJP for violation of UCMJ, Article 134, Specification I: In that PFC K_ (Applicant), having been restricted to the limits of billeting, mess, duty, and worship, by the Battalion Commander, did, on or about 1100, 03 Nov 2002, break said restriction by failing to report to the required restriction muster.
 Violation of UCMJ, Article 134, Specification II. In that PFC K_ (Applicant), having been restricted to the limits of billeting, mess, duty, and worship, by the Battalion Commander, did, on or about 1130, 6 Nov 02, break said restriction by going to a residence off base without proper authority.
Violation of UCMJ, Article 134, Specification III. In that PFC K_ (Applicant), having been restricted to the limits of billeting, mess, duty, and worship, by the Battalion Commander, did, on or about 2100, 9 Nov 02, break said restriction by entering the Hadnot Point 7 Day Store without proper authority. SNM was dressed in unsat civilian attire.
Violation of UCMJ, Article 134, Specification IV. In that PFC K_ (Applicant), having been restricted to the limits of billeting, mess, duty, and worship, by the Battalion Commander, did, on or about 1100, 10 Nov 02, break said restriction by failing to report to the required restriction muster.
Award: Reduction to the rank of Pvt, forf of $511.00 pay per month for 2 months, restricted to the limits of FMCA, messing, billeting, duty, and place of worship for 45 days, 45 days extra duty. Forf of $511.00 pay per month for 2 months suspended for 6 months unless sooner vacated.
021216:  Forfeiture of pay awarded at NJP on 021122 vacated due to continued misconduct.

030327:  NJP imposed and suspended on 021122 for a period of 6 months is ordered executed this date.

030611:  NJP for violation of UCMJ, Article 86: PVT K_ failed to check into restriction at 0600 on 021201.
 Violation of UCMJ Article 86: PVT K_ failed to check into restriction at 0900 on 021201.
Violation of UCMJ Article 86: PVT K_ failed to check into restriction at 1300 on 021215.
Violation of UCMJ Article 86: PVT K_ failed to check into restriction at 0600 on 021218.
Violation of UCMJ Article 92: PVT K_ failed to obey a lawful order issued by LTCOL G_, not to have liquor on the barracks on 021218.
         Award: Restriction for 45 days. Not appealed.

030616:  Counseling: Applicant advised of his failure to take corrective action for pattern of misconduct. Applicant chose not to make a statement.

030707:  Applicant notified of intended recommendation for discharge by reason of misconduct due to a pattern of misconduct with a characterization of service as under other than honorable conditions. The factual basis for this recommendation was your adverse Page 11 entry, and 6 NJP’s.
030707:  Applicant advised of rights and having consulted with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

030708:  Officer in Charge, 2d Maintenance Battalion (Det) recommended Applicant’s discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct. Officer in Charge comments: “Retention of Private K_ (Applicant) would adversely affect the morale, discipline, and military effectiveness of this organization.”

030723:  SJA review determined the case sufficient in law and fact.

030723:  GCMCA, Commander, 2d Force Service Support Group directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

030916*:         Mental Health Outpatient Progress Note (SF-600), Naval Hospital Camp Lejeune, NC. The Applicant’s diagnoses at the time that he was discharged in August 2003:
         Axis I: Dysthymic Disorder, chronic, early onset, mild to moderate in severity (managed on medication – zoloft 150 mg per day).
         Axis II: Personality Disorder, not otherwise specified (histrionic/narcissistic and avoidant type). [* Extracted from document provided by the Applicant].

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030807 by reason of misconduct due to a pattern of misconduct (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).

The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and/or the reason for discharge if such change is warranted. There is no evidence of impropriety or inequity in the Applicant’s discharge. During 200110 a Clinical Psychologist examined the Applicant at the Naval Hospital Camp Lejeune and diagnosed the Applicant as having a Dysthymic Disorder and a Personality Disorder. The Applicant was treated with medication through 200111 and was scheduled for a follow-up appointment in 200112, but failed to show up. The Applicant was not seen again by the Clinical Psychologist until 200210. On 021106 the Applicant was advised that he was being processed for administrative discharge by reason of a pattern of misconduct. At that time the Applicant had been awarded nonjudicial punishment on 4 occasions and had received a retention warning. According to the Marine Corps Separation and Retirement Manual (MARCORSEPMAN) paragraph 6203.3.a., separation by reason of personality disorder is authorized only if no other basis for separation applies. The Applicant’s misconduct is clearly documented. Therefore, relief is denied.

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. An under other than honorable conditions 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. T he Applicant’s service was marred by 6 nonjudicial punishment proceedings for violations of Articles 86 (8 specifications of unauthorized absence), 91 (disrespect toward a superior noncommissioned officer), 92 (2 specifications of failure to obey an order, regulation), 111 (drunk driving), and 134 (3 specifications; communicating a threat, indecent exposure, drunk and disorderly) of the UCMJ. The Applicant also received a retention warning and had a suspended NJP award vacated due to continued misconduct. 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.




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 additional evidence related to this 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 91, contempt, disrespect toward superior noncommissioned officer, Article 92, failure to obey order, regulation, Article 111, drunken driving, and Article 134, drunk and disorderly, communicating a threat.
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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