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USMC | DRB | 2005_Marine | MD0501394
Original file (MD0501394.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. MD05-01394

Applicant’s Request
The application for discharge review was received on 20050809. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable or general (under honorable conditions). The Applicant requests a personal appearance hearing discharge review before a traveling panel closest to Norman, OKLA or OK City, OK. The Applicant designated Disabled American Veterans as the representative on the DD Form 293. In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in Washington DC at the Washington Navy Yard. The NDRB also advised that the Board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060522. 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 and reason for 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

Applicant’s issues, as stated on the application:

“My Discharge was inequitable Because it was based upon 1 issue and the evidence I gave was not taken into consideration. I was suffering from Acute Stress disorder do to my wife being Raped by a fellow Marine, CID investigate the incident and after 2 yrs from the Date of the incident & my discharge we were [illegible] to testify against this fellow Marine who was convicted of the crime & in prison. My mental health & support from my fellow Marines was not there this threw me in to mental illness that I was unable to cope with which led to my discharge for the misconduct toward my chain of command and follow on problems to include my Bad Discharge.”


Additional issues submitted by Applicant’s counsel/representative (Disabled American Veterans):

 “Dear Chairperson:

After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of evidence assembled for review, we continue to note the contention of the appellant in his request for a discharge upgrade of his current Under Other Than Honorable Conditions discharge to Honorable or General Under Honorable Conditions.

The FSM served on active service from August 15, 1994 to October 20, 1997 at which time he was discharged due to Involuntary Discharge-Board waived-Pattern of Misconduct.

The FSM contends the current discharge is improper because the evidence he provided was never considered, and based upon a single issue with multiple events and retaliation. These events are explained to a moderate point by the FSM and his attached psychiatric evaluation. Better detail is provided by the spouse as to the events that transpired. If even half of what this story is true then the FSM was truly mis-treated while on active duty and the discharge improper.

This creates a need for a review of the application of the standard, for the Board to determine that the applicant’s discharge was improper. The Board will determine which reason for discharge should have been assigned based upon the facts and circumstances before the Board, including the service regulations governing the reasons for discharge at that time, to determine whether relief is warranted. See, SECNAVIST 5420.174 D, Sect. 407, part 3.

As the representative, we ask that consideration be given to equitable relief, as this is a matter that involves a determination whether a discharge should be changed under the equity standards, to include any issue upon which the applicant submits to the Board’s discretionary authority, under SECNAVIST 5420.174D.

Under the premises of equitable relief, we believe the Board can change the narrative reason to Convenience Of The Government, removing the notation of conduct. As to the request of the change of discharge to reflect a General discharge we leave that to a determination by the Board, but believe there is enough justification based on evidentiary review to provided equitable relief and grant at least a General Under Honorable Conditions discharge.
We ask for the Board’s careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision. These issues do not supersede any issues previously submitted by the applicant.”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Psychological Evaluation from W.D. R_, Ph. D. dtd June 27, 2005 (2 pgs)
Interpretive Report dtd May 31, 2005 (3 pgs)
Email from Applicant’s wife to millitarylawayers.org dtd August 20, 2004 (2 pgs)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    19930825 – 19940814               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19940815             Date of Discharge: 19971020

 Length of Service (years, months, days):

 Active: 03 02 05 (excludes lost time)
          Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 1 day
         Confinement:              none

 Age at Entry: 18

Years Contracted: 4

Education Level: 12                                 AFQT: 32

 Highest Rank: LCpl                                  MOS: 0311

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.2 (10)                      Conduct: 3.8 (10)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): National Defense Service Medal, Letter of Appreciation, Sea Service Deployment Ribbon w/1*


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 :
 961125:  Counseling: Advised of deficiencies in performance and conduct (Lack of tack and judgment while on liberty.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

961212:  NJP for violation of UCMJ, Article 92: LCpl P_ willfully disobeyed 1stSgt E_’s command to stay away from J_ N_, at 1900, on 961209.
         Award: Forfeiture of $475 per month for 1 month, restriction and extra duty for 45 days, reduction to E-2. Not appealed.

970204:  Counseling: Advised of deficiencies in performance and conduct (Failure to obey orders and regulations), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

970721:  Applicant to unauthorized absence at 0700 on 970721.

970722:  Applicant from unauthorized absence at 1400 on 970722.

970725:  NJP for violation of UCMJ, Article 86: UA (AWOL) from Kilo Co, 3dBn, 3dMar, 3dMarDiv during the period of 0700, 970721 through 1400, 970722.
         Award: Forfeiture of $234 per month for 1 month. Not appealed.
970829:  NJP for violation of UCMJ, Article 86: Did, at EICo, SptBn, TBS, on or about 0800, 970810, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: EICo duty NCO for transport to the field in support for IOC FEX III.
 Violation of UCMJ, Article 107: Did, at EICo, SptBn, TBS, on or about 970812, make a false official statement to Captain H_ by repeatedly affirming that he was at Dewitt Hospital, Ft. Belvoir on Sunday, 970812 when he was not.
         Award: Forfeiture of $450 per month for 2 months (suspended for 6 months), restriction and extra duty for 45 days, (30 days suspended for 6 months) reduction to E-1. Not appealed.

970917:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct, specifically a pattern of misconduct. The factual basis for this recommendation was two page 11, 6105 counseling entries, one company level nonjudicial punishment and two battalion level nonjudicial punishments. Applicant informed the least favorable characterization possible is under other than honorable conditions.

970917:  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.

970917:  Commanding Officer, Enlisted Instructor Company, recommended Applicant’s discharge under other than honorable conditions by reason of misconduct, specifically a pattern of misconduct. Commanding Officer’s comments: “Private P_ has shown a continued inability to respond to and show respect for established military authority. As substantiated by one Page 11 entry and three subsequent violations of the Uniform Code of Military Justice, Private P_ has knowingly and unhesitatingly disobeyed the orders of two distinct chains of command, specifically, 3d Battalion, 3 rd Marines in Hawaii and Enlisted Instructor Company, Support Battalion in Quantico, Virginia. Since his arrival in Quantico, he has continued to selectively disobey lawful orders given to him by superiors in his chain of command. He has [illegible] perfectly acceptable to lie to NCO’s and officers in his chain of command in an effort to protect himself and avoid disciplinary actions. It is imperative to note that these violation have occurred over a period of nearly one year; despite the continuous efforts of his superiors to develop this Marine’s regard for authority, he does not respond. As substantiated in his record, incidents of unauthorized absence are frequent, and no amount education by the chain of command has managed to convince this Marine of his impending requirement to correct his deficiencies. Other as yet undocumented incidents involving failure to repay debts also exist, lending further credibility to the assertion that Private P_ is an irresponsible, selfish, and unresponsive Marine who lacks the will to perform as a positive member of any military command. All efforts at rehabilitation have failed and it is the recommendation of this command that this Marine be expeditiously separated from the service. His characterization of service should be under Other Than Honorable Conditions.”

970917:  Commanding Officer, Support Battalion, The Basic School, recommended the Applicant’s separation under other than honorable conditions due to misconduct, specifically, a pattern of misconduct.

971008:  SJA review determined the case sufficient in law and fact.

971010:  GCMCA, Commanding General, Marine Corps Combat Development Command directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19971020 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 Applicant contends that his discharge is inequitable because it was based on one incident. When a Marine’s service has been honest and faithful, it is appropriate to characterize that service as honorable. 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. The Applicant’s service was marred by two retention warnings and three nonjudicial punishment proceedings for violations of Articles 86, 92 and 107 of the UCMJ. The Applicant’s violations of Articles 92 and 107 are 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 the “evidence” he submitted was not “taken into consideration.” The Board did not find cause for relief on this issue. The Applicant did not appeal any of his three nonjudicial punishment proceedings. The Applicant did not request an administrative discharge board. There is no indication in the record or in the documentation submitted by the Applicant that he was either not responsible for his conduct or should not be held accountable for his actions. Relief on this basis is denied.

The Applicant contends that his discharge is inequitable because he was suffering form “mental illness” as a result of an incident of sexual assault committed against his wife. While he may feel that his personal experience or mental condition was the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service. Neither the evidence of record nor the documentation provided by the Applicant 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, through his representative, that his narrative reason for separation should be changed. The NDRB, under its responsibility to examine the propriety and equity of an Applicant's discharge, will change the reason for discharge if such a change is warranted. The Applicant met the criteria for discharge by reason of misconduct due to a pattern of misconduct. The Applicant’s Commanding Officer recommended the Applicant for discharge by reason of misconduct due to a pattern of misconduct. On 19971010, the Commanding General, Marine Corps Combat Development Command directed the Applicant’s discharge by reason of misconduct due to a pattern of misconduct. No other Narrative Reason for Separation could more clearly describe why the Applicant was discharged. To change the narrative reason separation would be inappropriate. 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 6210, MISCONDUCT , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 31 Jan 97 until 31 Aug 01.

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 92, failure to obey order/regulation or Article 107, false official statement.
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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