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USMC | DRB | 2005_Marine | MD0501354
Original file (MD0501354.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. MD05-01354

Applicant’s Request
The application for discharge review was received on 20050802. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable. The Applicant requests a personal appearance hearing before the Board in the Washington, D.C. Metropolitan area. In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing. The Applicant designated Veterans of Foreign Wars as the representative on the DD Form 293.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 20060824 . 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 General (Under Honorable Conditions) by reason of unsatisfactory performance of duties.



PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application to the Board:

“My separation under the weight control program with a general characterization is inequitable. I am a combat veteran and deserve an honorable discharge characterization. My weight gain was a result of my inability to effectively cope with PTSD.”

 Issues submitted by Applicant’s representative Veterans of Foreign Wars:

 “Equity and Propriety Issue(s): The petitioner is the recipient of the Combat Action Ribbon for service under fire during Operation Desert Storm, due to stress incurred during combat, he is in receipt of service-connected compensation for PTSD due to stress incurred during combat.
Statement: In accordance with 32 CFR § 723, Department of Defense Instruction 1332.28 and SECNAVINST 5420.193, The Veterans of Foreign Wars submits to the Board for the Correction of Naval Records (BCNR) the above issue and following statement in supplement to the Applicant’s petition.

The petitioner served his country with honor during Operation Desert Storm. During this period of time, he experienced combat situations that earned him the Combat Action Ribbon(C.A.R.). In the petitioner’s service record there are letters from a Sergeant B_ and from petitioner’s Platoon Sergeant attesting to his willingness to help other Marines and urging an Honorable Discharge.

The period of events that culminated in the Under Honorable Conditions Discharge, took place after the return from deployment of the petitioner. The petitioner was beginning to experience the effects of the later diagnosed P.T.S.D.. The period of unexcused absence was 1 day and the two checks returned for insufficient funds totaled $350 dollars. We contend that considering petitioners war time service, the one month forfeiture of $204 of their pay and 30 days restriction, should not excuse, but balance out the incident. These incidents occurred following his deployment to a combat zone and should not mar the petitioner for the rest of his life.

With these side issues addressed first, addressing the reason for the discharge itself, we contend that the petitioner’s failure to meet weight standards, while unacceptable, are explained and should be mitigated by the previously discussed P.T.S.D. service connected disability. The re-enlistment code JHJ1 is assigned the petitioners DD214 declaring the petitioner was discharged for unsuitability/unsatisfactory performance(reason unknown).

But the veteran is a combat veteran, with a C.A.R., and declaring his service unsatisfactory, leaves the impression that their entire service was unsatisfactory. The issues of the 24 hour unexplained absence, and the overdrafts when combined with a weight problem, constituted evidence that later led to the award of a service connected rating from the Veterans Administration. Should this not then lead the board to grant relief on the grounds of equity? We hold that it does.

The petitioner has, since his discharge, been very involved with his church and community. Coaching Little League Football and assisting Youth at risk at a local juvenile institution. The veteran had no trouble with any UCMJ action prior to the series of events leading up to his discharge, and has not had any arrests since his separation from duty. The events under review are clearly the exception to the rule, that we have in the petitioner, a good member of society, who experienced a string of bad incidents, compressed into a four to five month time frame following their return from the combat zone. This veteran has shown, repeatedly since his separation from the Marines, that he is still willing to help when, and where needed.

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 BCNR’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 § 723, Department of Defense Instruction 1332.28 and SECNAVINST 5420.193.

We defer the Board’s deliberations to the circumstances and evidence of Record, and request that this Marine be granted an Honorable Discharge.

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 (Copy 4)
Ltr from the Veterans of Foreign Wars, dtd July 5, 2005

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    19900417 – 19900424               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19900425             Date of Discharge: 19930108

 Length of Service (years, months, days):

 Active: 02 08 09 (excludes lost time)
          Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 5 days
         Confinement:              None

 Age at Entry: 18

Years Contracted: 5

Education Level: 12                                 AFQT: 68

 Highest Rank: LCpl                                  MOS: 2147

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.6 (7)                                Conduct: 4.4 (7)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): Marksmanship Rifle Badge, National Defense Service Medal, Sea Service Deployment Ribbon, Southwest Asia Service Medal (3 rd Award), Combat Action Ribbon


Character, Narrative Reason, and Authority of Discharge (at time of issuance):
UNDER HONORABLE CONDITIONS (GENERAL)/Unsatisfactory Performance - Unsatisfactory performance of duties (administrative discharge board not required), authority: MARCORSEPMAN, Para 6206.1

 Chronological Listing of Significant Service Events :
911126:  Applicant to unauthorized absence at 1301 on 911126.
911202:  Applicant from unauthorized absence at 0600 on 911202.

911203:  NJP for violation of UCMJ, Article 86:
Specification: In that LCpl K_ (Applicant) was UA (AWOL) 1301, 911126 to 0600, 9111202 from Company A, 2d LAI Bn.
          Award: Forfeiture of $204.00 pay per month for 1 month (suspended for 6 months), restriction and extra duty for 14 days. Not appealed.

 911203:  Commanding Officer, A Company, 3d Light Armored Infantry Battalion, requested Applicant be given a medical evaluation due to the Applicant’s failure to meet acceptable Marine Corps Weight Control standards.
9112xx:  Medical Officer, 2d Light Armored Infantry Battalion, indicated Applicant’s physical appearance is not due to a pathological disorder and that the Applicant was fit for participation in a physical exercise program. Medical Officer advised that the Applicant’s recommended goal of 2 pounds per month and a total of 12 pounds within 6 months was a realistic goal. Applicant’s Height: 68”. Weight: 193 lbs. Body Fat: 20%. Applicant is 11 lbs. over his maximum weight.

 911204:  Applicant assigned to weight control program. Applicant directed to lose 2 pounds per month for 6 months.

911204:  Applicant acknowledged that his physical condition did not appear to be due to a pathological disorder and his assignment to weight control.
911218:  Counseling: Advised of deficiencies in performance and conduct (failure to maintain sufficient funds in checking account for all checks written, lack of integrity and unsatisfactory conduct as a Marine), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

920107:  NJP for violation of UCMJ, Article 134:
Specification: In that LCpl K_ (Applicant) did on or about 911216, make and utter to MWR, CLNC check number 108 in the amount of $150.00 and did thereafter dishonorably fail to place or maintain sufficient funds in the First Citizens Back for payment of such check in full, upon its presentment for payment.
          Award: Forfeiture of $213.00 pay per month for 1 month, restriction and extra duty for 14 days. Not appealed.

920203:  Applicant to unauthorized absence (AWOL) at 0545 on 920203.
         Applicant from unauthorized absence at 1030 on 920203 (surrendered).

920602:  NJP for violation of UCMJ, Article 134:
         Specification: On or about 920518; utter a worthless check to MWR, Camp Lejeune for the amount of $200.00 (check #526) and thereafter failed to maintain sufficient funds at First Citizens Bank to cover the check at presentment.
 Award: Restriction and extra duty for 30 days, reduction to E-2. Not appealed.
920909:  Medical Officer, 2d Light Armored Infantry Battalion, indicated Applicant’s physical appearance is not due to a pathological disorder. Applicant’s Height: 68”. Weight: 192 lbs. Body Fat: 19%.
920924:  Applicant notified of intended recommendation for discharge under honorable conditions (general) by reason of unsatisfactory performance due to failure to conform to weight standards. Applicant informed the least favorable character of service possible is under honorable conditions (General) and that the recommendation is based upon failure to achieve weight goal of 181 pounds after being assigned to the weight control program on 4 December 1992 [sic].

921007:  Applicant advised of rights and having elected not to consult, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

 921007:  Commanding Officer, 2d Light Armored In fantry Battalion, recommended the Applicant be discharged under honorable conditions (general) by reason of failure to conform to weight standards pursuant to the provisions of paragraph 6206.1. The basis for this recommendation is the Applicant’s failure to achieve his weight goal of 181 pounds after being assigned to the weight control program on 4 December 1991. Commanding Officer’s comments: “Retention of the respondent would adversely affect the morale, discipline, and military effectiveness of the organization.”

921119:  Commanding Officer, 2d Light Armored Infantry Battalion , informed Staff Judge Advocate, 2d Marine Division , that the Applicant met the criteria for separation based on minor disciplinary infractions . Commanding Officer’s comments: “A review of the Marine’s offenses shows one nonjudicial punishment for unauthorized absence and two for failin g to maintain sufficient funds. [Applicant’s] record of service is that of an otherwise good Marine. Unfortunately, he could not conform to Marine Corps weight standards. ”

921222:  SJA review determined the case sufficient in law and fact.

921223:  Commanding General, 2d Marine Division, directed the Applicant’s discharge under honorable conditions (general) by reason of unsatisfactory performance due to failure to conform to weight standards.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19930501 by reason of unsatisfactory performance of duties (A and B) with a service characterization of under honorable conditions (general). 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 is inequitable because he is a combat veteran. The Applicant’s representative contends that the Applicant is a combat veteran and that “declaring his service unsatisfactory, leaves the impression that their [sic] entire service was unsatisfactory.” 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. T he Applicant’s service was marred by three nonjudicial punishment proceedings for violations of Articles 86 and 134 of the UCMJ. The Applicant spent five days in unauthorized absence. The Applicant also had one period of unauthorized absence which was not adjudicated. The Applicant’s violations of Article 134 of the UCMJ for dishonorably failing to main tain funds are serious offenses for which a punitive discharge is authorized. The Applicant was also counseled and issued a retention warning for failure to maintain sufficient funds, lack of integrity and unsatisfactory conduct. 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 is inequitable because his weight gain was the result of his post-traumatic stress disorder (PTSD). While he may feel that his unsatisfactory performance was a result of his medical condition, neither the evidence of record nor the documentation submitted by the Applicant demonstrate that he should not be held accountable for his unsatisfactory performance or that he was not responsible for his conduct. In December 1991 and September 1992 competent medical authority determined that th e Applicant’s physical appearance was not due to a pathological disorder. Relief denied.

The Applicant contends, through his representative, that his discharge should be upgraded due to post-service conduct. 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 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 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 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 6206, UNSATISFACTORY PERFORMANCE , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16D, effective 890627 until 920309, except for subparagraph 1, which was retroactively changed by ALMAR 57/93, effective 920310) .

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 134, checks, worthless, making and uttering, by dishonorably failing to maintain funds.
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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