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USMC | DRB | 2005_Marine | MD0501455
Original file (MD0501455.rtf) Auto-classification: Denied


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

ex-LCpl, USMC
Docket No. MD05-01455

Applicant’s Request
The application for discharge review was received on 20050829. 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 20060531. 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

Applicant’s issues, as stated on the application:

“Spouse’s behavior was the cause of early Discharge.
Dishonorable Discharge
1997 Communications School. 29 Palms CA
S_ C_ H_”


 Documentation
In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 149, dtd March 3, 2005

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    19960724 - 19960812      COG
          Active: None
Period of Service Under Review :
Date of Enlistment: 19960813             Date of Discharge: 19991101

 Length of Service (years, months, days):

 Active: 03 02 19
          Inactive: None

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

 Age at Entry: 19

 Years Contracted: 4

 Education Level: 12                                 AFQT: 42

 Highest Rank: LCpl                                  MOS: 2531

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.0 (9)                                Conduct: 3.9 (9)

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): *

* DD Form 214 not contained in the Service Record.


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 :

970605:  Counseling: Advised of deficiencies in performance and conduct (Frequent tardiness and failure to notify chain of command of whereabouts in a timely manner.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

971219:  Counseling: Advised of deficiencies in performance and conduct (Failure to establish a Family Care Plan, Per MCO 1740-13A. Applicant’s failure to establish a family care plan places Applicant in a non-deployable status for training and contingencies. To return to a deployable status Applicant was instructed to complete a comprehensive family care plan that provides for all possible contingencies including both short term and long term deployment or absences. Applicant had 60 days from this date to provide the Commanding Officer with an acceptable family care plan.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

980223:  Applicant examined after a motor vehicle accident on 18 Feb 98 and placed on 3 days light duty.
980316:  Applicant’s last name is changed, verified with marriage certificate.
980514:  Report of Abbreviated Limited Duty Medical Board. Applicant diagnosed with low back pain as a result of motor vehicle accident on 18 Feb 98. Applicant discharged from physical therapy, no further treatment indicated- also evaluated by Ortho and Chiro. Will recommend Admin Sep.
         Limitations: PT at own pace.
         Period of Limited Duty: 6 months.

980520:  HQBN BAS, 1 st MARDIV, CAMP PENDLETON, CA. Patient (Applicant) placed on limited duty for six (6) months from 18 May 98 to 18 Nov 98, diagnosis low back pain.




980723:  Medical evaluation at Mental Health, Naval Hospital, Camp Pendleton, CA by J. L. S_, Cdr, MSC, USN.
          AXIS I: Occupational problems, partner related problem.
         AXIS II: Personality disorder not otherwise specified with borderline and antisocial features.
         AXIS III: Lower back pain.
         Recommendation: Command should undertake administrative separation for unsuitability due to a personality disorder. Supportive therapy for a total of 6 sessions over 24 weeks to resolve: potential for self harm, stress, marital problem. Return to clinic in 2 weeks.
980803:  NJP for violation of UCMJ, Article 92: In that LCpl H_(Applicant), having knowledge of a lawful order issued by Sgt S_, to get outside and get outside now, an order which was her duty to obey, did on or about 980609, fail to obey the same by not moving at all.
 Violation of UCMJ, Article 134: In that LCpl H_(Applicant), did, on or about 980609, wrongfully communicate to Sgt S_ a threat, by grabbing a long metal pipe, held it up and said “don’t even walk up on me!”
          Award: Forfeiture of $539.00 per month for 2 months, extra duty for 60 days. Forfeiture and extra duty for suspended for 6 months. Not appealed.

981202:  Counseling: Advised of deficiencies in performance and conduct (Poor judgment, specifically negligence actions on 981018 resulted in the damage of a fellow Marine’s base quarters.), necessary corrective actions explained, sources of assistance provided.

981220:  Acknowledged understanding of eligibility but not recommended for promotion to Cpl for the promotion period Jan, Feb, Mar 99 due to NJP. Applicant chose not to make a statement.

990320:  Acknowledged understanding of eligibility but not recommended for promotion to Cpl for the promotion period Apr, May, Jun 99 due to maturity. Applicant chose not to make a statement.

990708:  Medical evaluation by Mental Health Department, Naval Hospital, Camp Pendleton, CA.
          AXIS I: Occupational problem
         AXIS II: Personality disorder not otherwise specified with borderline antisocial features.
         AXIS III: Chronic lower back pain.
         Plan: 1. Pt wants to pursue MEB for LBP. 2. If MEB is unsuccessful, command must consider administrative separation due to personality disorder, if behavior continues to warrant it. 3. RTC in 1 mo.
990713:  Medical Officer, Battalion Aid Station, Headquarters Battalion, 1 st Marine Division, recommended administrative separation for a physical condition, not a disability. These conditions include mechanical low back pain and personality disorder.

990715:  Counseling: Advised of deficiencies in performance and conduct (Pattern of misconduct which renders Applicant unfit for further service.), sources of assistance provided and advised being processed for administrative discharge action.

990715:  Commanding Officer, Communications Company, Headquarters Battalion, 1 st Marine Division recommended to Commanding General, 1 st Marine Division via Commanding Officer, Headquarters Battalion, 1 st Marine Division Applicant’s discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct. CO’s comments: “SNM (Applicant) has three page 11 entries, and two NJP’s. LCpl H_ (Applicant) lacks maturity, integrity, and responsibility for her actions. SNM (Applicant) is a habitual offender who shows total disregard for orders and regulations.”

990717:  NJP for violation of UCMJ, Article 86: UA (AWOL) on 0700, 990125.
 Violation of UCMJ, Article 86: UA (AWOL) on 0645, 990709.
          Award: Forfeiture of $589.00 per month for 2 months, extra duty for 30 days. Forfeiture and extra duty suspended for 6 months. Not appealed.

990720:  Acknowledged understanding of eligibility but not recommended for promotion to Cpl for the promotion period Jul, Aug 99 due to judgment. Applicant chose to make a statement.

990723:  Applicant notified of intended recommendation for discharge by reason of misconduct due to a pattern of misconduct with a characterization of Under Other Than Honorable Conditions. The factual basis for this recommendation was documented pattern of misconduct.

990723:  Applicant advised of rights and having elected not to consult with counsel, elected to appear before an Administrative Discharge Board.









990730:  Medical evaluation at Mental Health Clinic, Naval Hospital, Camp Pendleton, CA by J. L. S_, Cdr, MSC, USN.
          AXIS I: Occupational problem.
         AXIS II: Personality disorder not otherwise specified with borderline and antisocial features.
         AXIS III: Chronic lower back pain.
         Plan: 1. I strongly recommend administrative separation due to unsuitability for the Marine’s personality disorder.
         2. RTC in 1 month, but or/as needed.
990730:  Commanding Officer, Headquarters Battalion, 1 st Marine Division recommended Applicant’s discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct. Commanding Officer’s comments: “Based on the above, it is apparent that LCpl H_(Applicant)’s potential for further productive service is negligible. The documented instances of her misconduct represents a “significant departure” from the conduct expected of all Marines. Because of the unsatisfactory quality of this Marine’s conduct, I recommend that she be discharged with a characterization of service as Under Other Than Honorable.

 990831:  Applicant waived Administrative Discharge Board. Applicant consulted with her detailed defense counsel and was advised of the procedures associated with an administrative discharge board and her rights to appear before that forum. The Applicant knowingly, consciously, and voluntarily waives her right to a hearing before an administrative discharge board. That Applicant acknowledges that by waiving her right to an administrative discharge board, that she may receive an other than honorable characterization of service for a pattern of misconduct. The Applicant request that the characterization of service be Honorable or, if an Honorable discharge is deemed inappropriate, characterize my discharge as General (under honorable conditions).

990831:  Applicant’s personal statement to Commanding General, 1 st Marine Division.

990831:  Applicant’s detailed defense counsel letter to Commanding General, 1 st Marine Division, requesting consideration for the Applicant’s characterization as Honorable or General (under honorable conditions).
990920:  Acknowledged understanding of eligibility but not recommended for promotion to Cpl for the promotion period Sep-Feb 00 due to NJP. Applicant chose not to make a statement.

991007:  SJA review determined the case sufficient in law and fact.
991013:  GCMCA, Commander, 1 st Marine Division (Rein) directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

 Service Record Book is missing elements of information (DD Form 214).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19991101 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 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).

While the Applicant’s military service records and complete discharge package were available to the Board for analysis, it did not contain a copy of his DD Form 214. In lieu of the DD Form 214, the Board presumed the information contained in the available records to be accurate.

 The Applicant contends that her problems in the Marine Corps can be attributed to “spousal abuse”. While she may feel that this was the underlying cause of her misconduct, the record clearly reflects her willful misconduct and demonstrated she was unfit for further service. The evidence of record did not show that the Applicant was either not responsible for her conduct or that she should not be held accountable for her actions. Relief 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 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 nonjudicial punishment proceedings for violations of Articles 86 (unauthorized absence), 92 (failure to obey order) and 134 (communicating a threat) of the UCMJ. According to the UCMJ, violations of Article 92 and 134 are considered serious offenses. In addition, the Applicant received 2 retention warnings and was not recommended for promotion on 2 occasions. The Applicant’s conduct, which forms the primary basis for determining the character of her service, reflects her willful failure to meet the requirements of her contract with the U.S. Marine Corps and falls far short of that required for an upgrade of her 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 P1900.16E), 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) and 134 (threat, communicating).
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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