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USMC | DRB | 2006_Marine | MD0600138
Original file (MD0600138.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. MD06-00138

Applicant’s Request
The application for discharge review was received on 20051026. 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 20060824 . After a thorough review of the available 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 convenience of the government due to condition not a disability.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

 “I believe that what I did does not call for me to be anything other than honorable I was a hurt marine in a bad place mentally because I join to serve not to sit months in sick bays and I don’t feel that Its fair for me to live the rest of my life without a Honorable Discharge I also would like to add that my stay in the Marines was cut short due to medical reasons and that the reason why I received my current discharge was 1 isolated incident, and at this time I was told that something had to be done to me to set an example and I don’t feel that I should be the ginne e pig. Please upgrade my discharge so I don’ t have to live the rest of my life with this, because of 1 thing that happened during 11 months of my service time Thank you.”
Documentation
Only the service record book was reviewed. The Applicant did not provide additional documentation for the Board’s consideration.

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    19960329 - 19960520      COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19960521             Date of Discharge: 19970425

 Length of Service (years, months, days):

 Active: 00 11 05
          Inactive: None

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

 Age at Entry: 18

 Years Contracted: 4

 Education Level: 12                                 AFQT: 65

 Highest Rank: PFC                                   MOS: 9971

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: NA*                                    Conduct: NA*

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

*Not Available


 Character, Narrative Reason, and Authority of Discharge (at time of issuance):
GENERAL (UNDER HONORABLE CONDITIONS)/CONDITION NOT A DISABILITY, authority: MARCORSEPMAN Par. 6203.2.

 Chronological Listing of Significant Service Events :

961025:  NJP for violation of UCMJ, Article s 90 and 134: At SACCo, HQSPTBn, SOI, MCB, CamPen : In that PFC M_(Applicant), having received a lawful command from Capt L_, his superior commission officer, then known by the said Marine to be his superior commissioned officer, not to drink any alcoholic beverage if under the age of 21, or words to that effect, did at 62 Area Bldg #62506, Christianitos Gate, MCB, CamPen, on or about 0324, 961019, willfully disobey the same. In that PFC M_(Applicant), did, at 62 Area, Bldg # 62506, Christianitos Gate, MCB, CamPen, on or about 0324, 961019, wrongfully and falsely alter by placing a photocopied date of birth sticker on the backside of his military identification cared inwords and figures as follows: 13Jul75.
         Award: Forfeiture of $200 per month for 1 month, restriction and extra duty for 14 days. Not appealed.

 961025:  Counseling: Advised of deficiencies in performance and conduct (Art 90: O n or about 961018, having received a lawful order from Capt. L_ then know by the said SNM to be his Commanding Officer, not to drink any alcoholic beverage if under the age of 21, or words to that effect, did on or about 961018, willfully disobey the same. Art 134: On or about 961018, wrongfully altered or tampered with a military identification), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
961119:  Sick call and seen by H. B_. Follow up on asthmatic bronchitis. S: Applicant claims to be no better, is still wheezing, claims responding to inhaler. A: Preventive inhaler treatment – albuterol with some relief but [unreadable] of the chest pain persistent with inspiratory and expliratory bronchitis and wheezing. Imp: Asthmatic bronchitis.

970108:  Applicant to Internal Medicine. Applicant had episode of asthmatic bronchitis approximately 13-14 November 1996. Provisional Diagnosis: Asthma.

970122:  Naval Hospital, Camp Pendleton, CA: M.R. S_, M.D. Impression: Incapable to Pt for symptomatic Exectional Dyspnea no R.A.D. with Inflam airway disease. Suggest try Tralada 250 mgs and Preventol and Vanceral for 2-4 weeks – if unsuccessful in returning Pt to training recommend admin sep. Agree with above. Pt agrees. Recommended meds advised.

970204:  Naval Hospital, Camp Pendleton, CA: M. R. S_, M.D.: Pt has been on Provental, Vanceral, and Tralade and no significant assistance. Unable to train. P.E. today; lungs clear, no wheeze or Rhonchi. Recommend admin sep.

 970204:  Counseling: Advised of deficiencies in performance and conduct (Diagnosed with asthma which hinders ability to continue training), necessary corrective actions explained, sources of assistance provided, and advised being processed for administrative discharge action. Applicant choose not to make a statement.
970224:  Applicant notified of intended recommendation for general (under honorable conditions) discharge by reason of convenience of the government due to physical condition not a disability. The factual basis for this recommendation is the medical evaluation on 4 February 1997 by M. R. S_, M.D. [Applicant’s] condition has also been determined to be incompatible w ith continued military service. Applicant informed least favorable character of service possible is general (under honorable conditions).

970224:  Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.

 970224:  Commanding Officer, Headquarters and Support Battalion, School of Infantry, Camp Pendleton, CA , recommended Applicant’s general (under honorable conditions) discharge by reason of convenience of the government due to physical condition not a disability. Commanding Officer’s comments: “As a result of a litany of medical complaints to the 52 Area Branch Medical Clinic, PFC M_(Applicant) was evaluated on 4 February 1997 by M. R. S_, M. D. with having Asthma. Dr. S_ concluded that the prescribed medications and treatments were not successful in improving his condition. As a result, Dr. S_ recommended that PFC M_ be administratively separated since his condition is incompatible with continued service in the Marine Corps.”
970311:  Commanding Officer, School of Infantry, Marine Corps Base, Camp Pendleton, CA, recommended Applicant’s general (under honorable conditions) discharge by reason of convenience of the government, specifically physical condition not a disability.
970312:  Applicant placed on voluntary leave awaiting administrative separation.

 970314:  GCMCA, Base Commander, Marine Corps Base, Camp Pendleton, CA , directed the Applicant's general (under honorable conditions) discharge by reason of convenience of the government, specifically due to a physical conditions which is not a disability, i.e., Asthma.

Service Record was missing elements of the Summary of Service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19970425 by reason of convenience of the government due to condition not a disability (A and B ) with a service characterization of general (under 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 ).

The Applicant implies that his discharge is inequitable because his current characte r of service was the result of “ 1 isolated incident. ” 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. The Applicant’s service was marred by a retention warning and nonjudicial punishment proceedings for violations of Articles 90 and 134 of the UCMJ. The Applicant’s violations of Articles 90 and 134 of the UCMJ are considered serious offenses for which a punitive discharge is authorized if adjudged as part of the sentence upon conviction by a special or general court-martial. The Applicant’s conduct, which forms the primary basis for determining the character of his service, falls short of that required for an upgrade of his characterization of service. Relief is not warranted.

The Applicant implies that the characterization of his service is inequitable because he was used “to set an example.” The Applicant also implies that he should not be held accountable for his actions because he was “mentally in a bad place.” There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that he was not responsible for his conduct or that he should not be held accountable for his actions. The Board discovered no impropriety or inequity after a review of Applicant’s case. Relief denied.

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. 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. Representation at a personal appearance hearing is recommended but not required.



Pertinent Regulation/Law (at time of discharge)

 A. Marine Corps Separation and Retirement Manual, (MCO P1900.16E, effective 18 Aug 95 until 31 Aug 2001), paragraph 6203, CONVENIENCE OF THE GOVERNMENT.
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 90, willfully disobey a superior commissioned officer.

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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