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USMC | DRB | 2006_Marine | MD0600026
Original file (MD0600026.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. MD06-00026

Applicant’s Request
The application for discharge review was received on 20050927. 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 Disabled American Veterans as the representative on the DD Form 293.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 20060721. 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.


The NDRB did note an administrative error on the original DD Form 214. Block 26, Separation Code, should read “HKA1.” The Commandant, Headquarters USMC, Quantico, VA, will be notified, recommending the DD Form 214 be corrected or reissued, as appropriate.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the attached document/letter to the Board:

“My discharge was inequitable because it wasn’t based on my work performance, although I hoped to complete my entire four-year obligation to the Marine Corps, but my medical aliment did not permit that to happen. I believe that I was discharged from the Marine Corps because of my medical situation, it was characterized as misconduct, but it stands to reason that I was really charged for not having Marine Corps issue, pt gear, while I going to physical therapy. At the time the MD Broad already found me unfit for duty and was in the process of discharging me for medial reasons. I didn’t understand at the time but the more you look at the facts, the more clear things become at the time of my separation my prolean marks were (4.0 percent/3.9) and I also have four statements of character. One from a 0-6 captain in the Navy, and a certificate of commendation from the commanding general of 1 st Marine Division.”


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 Other Than Honorable Discharge (OTH) to that of Honorable.

 The FSM served on active service from April 10, 2000 to December 9, 2001 at which time he was discharged due to Misconduct.

The FSM contends the current discharge is inequitable because it was not based on work performance, but due to a medical issue. Also stating that his service marks were 4.0 / 3.9 and refers the Board to the multiple character reference attachments.

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.

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:

Applicant’s Statement (issue)
Applicant’s DD Form 214
Conditional Waiver of Administrative Discharge Board dtd October 15, 2000
Certificate of Commendation dtd March 14, 2001
Statement of Character from F_ C. V_ (3 pgs) dtd October 15, 2001
Statement of Character from E_ R_ (3 pgs) dtd October 15, 2001
Statement of Character from M_ D. S_ (3 pgs) dtd October 11, 2001
Statement of Character from W_ S. S_ (3 pgs) dtd October 13, 2001
Findings of the Physical Evaluation Board Proceedings dtd October 31, 2001
Medical Board Notification dtd July 21, 2001
Extracts from Medical Record (58 pgs)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    20000225 – 20000409               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 20000410             Date of Discharge: 20011209

 Length of Service (years, months, days):

 Active: 01 08 00
         Inactive: None

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

 Age at Entry: 24

Years Contracted: 4

Education Level: 12                                 AFQT: 71

 Highest Rank: PFC                                   MOS: 0151

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 2.0 (1)*                               Conduct: 2.0 (1)*

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

*Extracted from CO’s message dtd 010806


 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 :

000225:  Marine Corps District level waiver granted for law violations adjudicated as serious offense.

001128:  Counseling: Advised of deficiencies in performance and conduct (Violation of Article(s) 91 and 128 of the UCMJ.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued. Applicant chose to make a statement.

001206:  Applicant submitted rebuttal.

010227:  Naval Hospital, Camp Pendleton, California Surgery Authorization Sheet: Right Ankle Reconstruction.

010405:  NJP for violation of UCMJ, Article 91 (6 specs): Insubordinate conduct toward a non-commissioned officer.
 Award: Forfeiture of $584.00 pay per month for 2 months (forfeiture of $584.00 pay per month for 1 month suspended for 6 months), restriction and extra duty for 30 days (suspended for 6 months). Not appealed.
010416:  Counseling: Advised of deficiencies in performance and conduct (Violation of Article 91 of the UCMJ which resulted in Company level NJP.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

010516:  Acknowledged understanding of eligibility but not recommended for promotion to LCpl for the month of June because of NJP restriction. Applicant chose not to make a statement.

010613:  Commanding Officer, Naval Hospital, Camp Pendleton Medical Board Notification: Applicant was evaluated and appeared before a Medical Board convened at this hospital. Diagnosis: Post Traumatic Ankle Synovitis, Ankle Hypermobility. Limitations are: No running, PFTs, prolonged standing, field duties or ops. Limited duty for 8 months.

010711:  Commanding Officer, Naval Hospital, Camp Pendleton Medical Board Notification: Applicant was evaluated and appeared before a Medical Board convened at this hospital. Diagnosis: Chronic Ankle Edema, Synovitis (right), Status Post Brostrom Laird Ankle Ligament Repair. Limitations: No running, PFT’s, no humps, no prolonged standing, no field operations/duties, no deployments. Referred to Physical Evaluation Board.

010723:  Counseling: Advised of deficiencies in performance and conduct (PFC M_ (Applicant) has shown no favorable impression of conduct and has made no positive contributions to his work section. Additionally, PCF M_ (Applicant) is generally undependable, needs considerable assistance and close supervision on even the simplest of assignments. PFC M_ (Applicant) has shown absolutely no initiative or enthusiasm towards any issue other than his own personnel welfare. He needs constant and direct supervision just to ensure that he remains at or returns to his appointed place of duty. He often disappears for extended periods only to be found sleeping in the head. He has failed to accomplish any task nor has he shown any desire to perform any function in his work section. PFC M_’s (Applicant) presence in his work section had been detrimental to the good order and discipline and disruptive of our daily routine. He has been counseled on more than one occasion about his slovenly appearance and apathetic attitude by supervisory personnel at all levels. He has also been counseled about his flippant, discourteous and disrespectful behavior towards senior personnel). Applicant chose to make a statement.

010725:  Naval Hospital Camp Pendleton, California Medical Board Report:
          Diagnosis:
 1. Painful Cicatrix, DNEPTE, CD, #7092
2. Ankle Joint Synovitis, DNEPTE, CD, #72700
3. Chronic Ankle Pain, Right Ankle, DNEPTE, CD, #71947
Opinion: Is it my opinion that the patient is unfit for full duty. He has exhausted conservative and surgical care. It is my recommendation that this case be referred to the Central Physical Evaluation Board.
        
010730:  NJP regarding imposed and suspended on 010405 for the period of 6 months is hereby vacated and the punishment is ordered executed 010730.

010730:  NJP for violation of UCMJ, Article 91: In that PFC M_, M.D., was disrespectful deportment towards SSgt M_.
         Award: Restriction for 45 days. Not appealed.

010807:  Counseled: Applicant notified of being processed for discharge from the Naval Services for Minor Disciplinary Infractions. Applicant chose to make a statement.

010828:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service under other than honorable conditions by reason of pattern of misconduct. The factual basis for this recommendation was your documented instances of misconduct.

010828:  Applicant advised of rights and having elected not to consult with counsel, elected to appear before an Administrative Discharge Board and obtain copies of documents supporting the proposed discharge.
010828:  Commanding Officer, Headquarters Battalion, 1 st Marine Division, recommended to the Commanding General, 1 st Marine Division, Applicant’s discharge under other than honorable conditions by reason of pattern of misconduct. Commanding Officer’s comments: “Private First Class M_ (Applicant) has displayed contempt of authority as evidenced by his appearance in numerous non-judicial punishment proceedings. He has appeared at one company level non-judicial punishment for violation of Articles 91x6. He has also been subject to one battalion level non-judicial punishment for violation of Article 91. PFC M_ (Applicant) is currently pending a Special Court-Martial for violation of Article 117 of the UCMJ. He has received a 6105 entry and a non-recommendation for promotion. Due to his unwillingness to respect senior personnel, PFC M_ (Applicant) has established a pattern of misconduct which I firmly believe will only continue. It is evident that PFC M_ (Applicant) refuses to develop any sense of personal integrity or learn from his past mistakes. It is for these reasons that I am recommending that his separation be under other than honorable conditions. If separated, his proficiency and conducts marks will be 2.0/2.0, respectively. His EAS is 9 April 2004.”

010830:  NJP for violation of UCMJ, Article 92 (3 Specs): Failure to obey a lawful order.
         Award: Forfeiture of $100.00 pay month for 2 months (forfeiture of $100.00 pay per month for 1 month suspended for 6 months. Not appealed.

011018:  Applicant requested Conditional Waiver of Administrative Discharge Board in exchange for a general discharge.

011023:  Commanding General, 1 st Marine Division (Rein), disapproved request for conditional waiver of Administrative Discharge Board.

011028:  Applicant waived of Administrative Discharge Board.

011029:  Physical Evaluation Board: Applicant was found unfit. Recommended disposition: Separate from Active Duty with severance pay. Combined disability rating: 10%.

011101:  Applicant waived of Administrative Discharge Board and requested consideration of general discharge.

011105:  SJA review determined the case sufficient in law and fact.

011119:  GCMCA, Commanding General, 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.

011119:  Commanding General, 1 st Marine Division (Rein), requested that Applicant be barred from Camp Pendleton since continued or future presence on board Camp Pendleton would be detrimental to good order and discipline.

011209:  DD Form 214: Applicant discharged. Applicant unavailable for signature.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20011209 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 desires an upgrade based on quality of service. When a Marine’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions. Characterization of service as 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. There is irrefutable evidence that the Applicant’s conduct during his time in the Marine Corps was not honorable. Indeed, the Applicant’s records contain:
•         Retention warning entry on 2001128 for deficiencies in performance and conduct concerning violation of UCMJ Articles 91 and 128;
•         Non-judicial punishment proceedings on 20010405 for violation of six specifications of UCMJ Article 91 Insubordinate conduct toward a non commissioned officer;
•         Retention warning entry on 20010416 for deficiencies in performance and conduct concerning violation of UCMJ Article 91, which resulted in Company level NJP;
•         Counseling entry on 20010723 for deficiencies in performance and conduct;
•         Non-judicial punishment proceedings on 20010730 for violation of UCMJ Article 91 Disrespect toward a superior noncommissioned officer; and
•         Non-judicial punishment proceedings on 20010830 for violation of 3 specifications UCMJ Article 92 Failure to obey a lawful order.
 The Applicant’s conduct, which forms the primary basis for determining the character of his service, falls well below that required for an honorable characterization of service. An upgrade to honorable would be inappropriate; therefore relief is denied.

The Applicant implies that his discharge was improper since a medical board found him unfit for duty and was being processed for separation for medical reasons. It is true that on 20011029, the Physical Evaluation Board (PEB) found the Applicant unfit for duty and recommended separation from active duty with severance pay. However, the records do not support the Applicant’s contention that he was being processed for separation due to medical reasons. In fact, prior to the PEB determination, on 20010828, the Applicant was notified of the command’s intent to separate with an under other than honorable service by reason of misconduct due to pattern of misconduct. Per regulations, administrative separations for misconduct supercede those for physical disability. The Board also noted that the Applicant’s misconduct was further aggravated by the fact that one of his nonjudicial punishment proceedings occurred after processing for separation had already begun. Based on the review of his records, the Board unanimously concluded that the Applicant’s discharge processing was in substantial compliance with applicable statutes, rules, and regulations. Despite the Applicant’s contentions, the Board could find no impropriety or inequity that might afford the Applicant relief. Thus, the Board concluded that 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 post-service accomplishments or any other evidence related to the discharge at that time. 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 Insubordinate conduct and Article 92 Failure to obey 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 .

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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