DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW
DECISIONAL DOCUMENT


FOR OFFICIAL USE ONLY


ex-PFC, USMCR
Docket No. MD06-00142

Applicant’s Request

The application for discharge review was received on 20051020. 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 20060830 . 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 minor disciplinary infractions.

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PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application and from an attached letter to the Board:

“To Whom It May Concern:

This is an effort to have a “General Under Other than Honorable Conditions” discharge type changed to an “Honorable” discharge. This venture with the Marine Corps starts off as many enlistments probably have. I had a physical condition prior to enlistment in the Marines and as you may very well expect to hear the next line the recruiter said not to disclose the information. I know this is probably the first time this board has probably ever heard this but its true a recruiter lied to get someone to enlist. Upon enlistment as you can see from my medical documents I am providing from MEPS on 15 May, 2003 I suggested to the doctors who conducted a physical that I had in the past suffered from a head injury / neck injury. This information was ignored in opinion. Upon departure to Paris Island, SC I seemed to be in good health but still suffered from migraine headaches. Every time I ever went any doctor in the military I stated that I was experiencing headache but no action pertaining to migraines where ever taken. Upon graduation from recruit training I was awarded the “Company High Shooter” award out of the 547 recruits in my company. I was a very enthusiastic recruit / Marine with high hopes of success in the Marine Corps. Post graduation I moved on to Camp Legune, NC where I underwent Marine Combat Training and completed this successfully as I would say I graduated in the top 10% of my class. From there I traveled out west to Twentynine Palms, CA for MOS School as an 0621 “Field Radio Operator”. Up until this point in my career in the Corps my Pro/Con marks are as follows:

Recruit Training         Pro 4.2  Con 4.2 01/09/2004
MCT      Pro 4.2  Con 4.2 03/19/2004
MOS School       Pro 4.2  Con 4.2 04/20/2004

After graduation from MOS School in California I received a discharge from the unit that was labeled as “Honorable discharge but not a final discharge”

Checking into my permanent duty station which was my reserve unit 4/14 I never quite felt welcome. I & I Executive Officer Captain P_ never really had anything for me. I could not tell you what his problem was with me because to this day I still do not know. I checked into the unit on April 21, 2004 and in the month of May we received phone calls stating we were going to be activated and deployed to Iraq. The unit was scheduled to deploy July 6, 2004 for a 7 month deployment. My orders specifically stated if you are on any medications speak to your doctors who prescribed them to you and request a 6 month supply minimum. I did just this and upon check-in to the unit the Corpsman asked if I was on any medications and I showed him my medicines. These medicines included anti-anxiety, narcotic pain, and depression medications and the Corpsman said these medicines disqualified me from deployment. The commanding officer at this time stated to me in a meeting with just himself that I would not be deploying and he was moving for me to seek medical attention to obtain a medical discharge because if a Marine isn’t deployable he is no good to the Corps and the only option is discharge. I followed through with the orders of the CO and went to every appointment that he requested. Upon the unit deploying the major was gone and left the captain in charge as he would at this time be the senior commissioned officer. I sensed trouble at this point but never made any remarks or was never late one day in the entire time I was on active duty. I was ordered by a doctor during this time to go to a neurologist in Pensacola, Florida and also a Medical Evaluation Board (this decision was made on 07/19/2004 by Dr. E_ @ Redstone Arsenal Hospital) at the naval base to see this specialist because there wasn’t a navy certified neurologist local I could see. The captain did not like this idea because he had other plans for me. He informed the 1 ^st Sergeant that I would not be making this trip (although it was doctor ordered) and that he would indeed request that I forget the order and deploy to Iraq on September 12, 2004. The captain told me and I quote “You are not serving your country honorably and I will request that since you do not want to deploy I am going to recommend an administrative discharge” he did not state at this time the details of the discharge but merely that the discharge was going to be administrative. This is where the captain’s scheme really started to get very uncomfortable for me. He knew I was seeing civilian doctors for a skin disease that I had acquired while on active duty in the Marines and he also knew I was seeing a civilian neurologist as well as a pain specialist. He informed me on a Monday (I do not know the exact date of the occurrence) but he give me until Friday of the same week to have him every record from the doctor’s offices as well as a written report with diagnosis and prognosis of my treatment. I done everything in my power to get this information and did in fact provide ALL of the records he requested but could only come up with 2 of the 3 written reports from the doctors. The doctor that did not get me the information I requested stated she could have it by the following week but one week was not sufficient time for that type of request from a specialist who sees approximately 400 patients a week. I submitted the information to the captain and he basically said it was unacceptable and stated he was going to NJP me. At first I did refuse the NJP but this is where the problems really began. The captain was furious that I questioned his motives and asked for legal counsel and stated that if I did not accept the NJP he would have a court martial set up for me lying on my enlistment and charge me with malingering which would end up being a much harsher penalty. With my back against the wall I felt that there was no where to go and accepted NJP because the captain give me no extra duty time nor did he give me any sort of harsh penalty he only fined me $31. I figured out very shortly why he took this action against me. The only reason he was so persistent with the NJP is because my record in the Marines was crystal clear until this point and he was truly trying to get me an “Other Than Honorable” discharge and he NEEDED this disciplinary infraction against me to fulfill his request. The whole discharge process was declined by the MajGen in New Orleans, LA initially but when the unit come back from Iraq and the Commanding Officer was there somehow the discharge that had been returned denied was sent back in and come back this time approved and I was discharged on 04/19/2005. I did specify that I would be seeking healthcare benefits for the disease that I had acquired while in the service and was told specifically that if I ever tried to have this discharge changed or ever spoke with a VA representative the captain would bring me back on active duty and court martial me. At this point I have seen the damage an “Other Than Honorable” discharge is going to have on my life and this is a risk I am willing to take. The dermatologist stated that the skin disease was a disease that most likely occurred because of desert air and desert conditions. With the information I am providing I would ask of you a couple of things other than just changing the discharge to “Honorable”.

1)       Have the discharge changed to an “Honorable” discharge
2)       Provide healthcare benefits because I now have an incurable skin disease (Guttate Psoriasis) that I will have for the rest of my life or until a cure is discovered
3)       Honor the promotion I would have picked up had I not been forced to take an unnecessary NJP which would have made my rank Lance Corporal just from time in service.
4)       Have my re-enlistment code changed to Re-enlistment code 01 so I could possibly re-enlist into another branch of the service maybe with a different MOS.

Please look over the information and during the investigation and review of the documents provided you have any questions for me feel free to contact me via written mail, email, or by telephone. All of my contact information is provided below:

R_ D_ P_ (Applicant) (SS#)
(Address)
(Home Phone #)
(Email address)

I truly believe with your cooperation this could turn out to be a good experience because my pro / con marks even the day before my discharge are as follows:

Date prior to discharge  Pro 4.2  Con 4.3 09/13/2005

I was indeed a good Marine with good motives but ran into a bad situation and someone who had no compassion for another human being. This person could not distinguish between personal and business relationships and feelings. I had served my country honorably all the way until this captain decided he wanted to make trouble in my life and career. Also I would like for this board to make sure that my
“Secret Security Clearance” is on my final discharge because as to my knowledge is isn’t and this is going to be beneficial in my career.

Thanks for your consideration,

[signed]
PFC P_, R_ D. (Applicant) (SS#)”

Documentation

In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:

20 pages of the Applicant’s medical records.

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PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

         Inactive: None
         Active: None

Period of Service Under Review :

Date of Enlistment: 20030515             Date of Discharge: 20050419 *

Length of Service (years, months, days):

Active: 0 1 0 4 0 0
         Inactive: 0 0 0 7 05

Time Lost During This Period (days):

         Unauthorized absence: None
         Confinement:              None

Age at Entry: 22

Years Contracted: 8 (3 SMCR, 5 IRR)

Education Level: 12                                 AFQT: 78

Highest Rank: PFC                                   MOS: 0621

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 Expert Badge, National Defense Service Medal

* Per memo for the record of 060814 documenting phoncon btwn H_ R_ (NDRB) and SSgt S_ (MCRSC)
** Not Available from Service Record

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Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MARCORSEPMAN Par. 6210.2.

Chronological Listing of Significant Service Events :

031015:  Applicant reported for initial tour of active duty for training.

040422:  Applicant released from initial tour of active duty for training with an Honorable by reason of completion of required active service (USMCR) IADT.

040628:  Applicant joined to I – I, Huntsville, Alabama (SMCR unit, K Battery, 4 ^th Battalion, 1 4 ^th Marines). ( Extracted from 040909 counseling entry)

040909:  Counseling: Advised of deficiencies in performance and conduct (Unsatisfactory performance. On 28 June 2004, Applicant was mobilized in support of Freedom Iraqi Freedom. Upon Applicant’s arrival to the command, Applicant had in his possession various prescriptions that were not prescribed by an authorized military medical professional. Due to this the Applicant was sent to medical and psychologist to determine if Applicant deployable. It was determined that the Applicant was not a danger to self or anyone else. Applicant has chosen to seek any means of not deploying with unit. ) . N ecessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued . Applicant chose to make a statement (NDRB note: no statement in service record) .

040910:  Applicant UA from prescribed doctor’s appointment. ( Extracted from counseling entry of 041023, below.)

040927:  Counseling: Advised of deficiencies in performance and conduct (Unsatisfactory performance of duties.) . N ecessary corrective actions explained, sources of assistance provided, and advised being processed for adverse administrative action : Unsatisfactory performance of duties . Applicant chose to make a statement (NDRB note: no statement in service record).

041023:  Counseling: Advised of deficiencies in performance and conduct (Unauthorized absence. In that the Applicant did, on or about 10 September 2004, without authority, fail to go at the prescribed time to appointed place of duty to wit: Dr. L. B_, (Address).) N ecessary corrective actions explained, sources of assistance provided.
         Applicant chose to make a statement.

041023:  Counseling: Advised of deficiencies in performance and conduct (Failure to obey a lawful order. In that the Applicant having knowledge of a lawful order issued by Captain P_ and 1 ^st Sgt C_ to provide medical documentation about a skin disease, results from CAT scan, and neurologist appointment, an order which it was yours to obey, on or about 23 October 2004, failed to obey by not providing documentation.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
         Applicant chose to make a statement.

041029:  Page 11 Service Record entry documenting Applicant’s failure to submit a statement in response to counseling entries of 041023.

041120:  NJP for violation of UCMJ, Article 92:
         Specification: I n that PFC P_ (Applicant), having knowledge of a lawful order issued by Capt P_ to submit certain medical documentation, an order which it was his duty to obey, did, on or about 29 October 2004, fail to obey the same by not providing all documentation.
Award: Forfeiture of $31.00 pay per month for 2 months. Not appealed.

041120:  Counseling: Advised of deficiencies in performance and conduct (NJP dtd 041120), necessary corrective actions explained, sources of assistance provided, and advised being processed for administrative discharge action ( Pattern of Misconduct ). Applicant chose not to make a statement.

041120:  Counseling: Advised of deficiencies in performance and conduct (Misconduct), necessary corrective actions explained, sources of assistance provided, and advised being processed for administrative discharge action ( Minor Disciplinary Infractions ) . Applicant chose not to make a statement .

050413:  GCMCA, Commanding General, Headquarters, Fourth Marine Division, directs t hat the Applicant be discharged for Misconduct under MARCORSEPSMAN paragraph 6210.2 (Minor Disciplinary Infractions) and that Applicant’s Service be characterized as Other Than Honorable.

Service Record Book contains a partial Administrative Discharge package.
Service Record was missing elements of the Summary of Service.

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PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 2005041 9 by reason of misconduct due to minor disciplinary infractions (A) 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 ( B and C ). The presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package ( D ).

In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable. Specifically, and essentially, Applicant alleged that he was wronged by his Commanding Officer, Captain P_, resulting in his other than honorable discharge. The record, however, contains no evidence of any wrongdoing by the Applicant’s Commanding Officer, or anyone else for that matter, in the discharge process. The available record, and Applicant’s medical documentation, indicated that Applicant was identified with potential medical issues and received treatment from competent military medical care providers. The Board found that most of the medical documentation Applicant submitted explicitly indicated that his examinations were not deployment related. Further, Applicant was directed to meet with a doctor at a specified time and place, which he failed to do. Applicant was directed to provide certain medical documentation of his condition, which he failed to do. Applicant was given a second opportunity to provide the medical documentation, and again failed to do so. Therefore, relief is not warranted.

T he Applicant’s service was marred by 2 retention warnings, a counseling for violating Article 86 of the UCMJ, and a nonjudicial punishment proceeding for violation of Article 92 of the UCMJ. Taken together, these incidents constitute a series of at least three minor disciplinary infractions under applicable regulations. The NDRB advises the Applicant that certain serious offenses warrant separation from the Marine Corps in order to maintain proper order and discipline. A violation of Article 92 is considered a serious offense for which a punitive discharge is authorized if adjudged at a special or general court-martial. The Board presumes regularity in the conduct of governmental affairs in the absence of persuasive evidence to the contrary. As such, this Board presumed that Applicant’s discharge was regular in all respects. Relief denied.

The Applicant also implies that his misconduct was the result of alleged misrepresentations by his recruiter regarding his medical history (a concussion resulting in recurring migraines) and failure of examining doctors to take note of his condition. The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that the recruiter misled him through the recruitment process. Further, the record shows that Applicant’s pre-service injury was known and considered by examining medical personnel at enlistment. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case. However, even if the Applicant could show misrepresentations in the recruitment process, such misrepresentations would neither amount to a justification nor to a defense for the Applicant’s own misconduct. Relief denied.

In regards to Applicant’s request that the Board “provide healthcare benefits”, the Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board. There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.

Neither does the Board have any authority to affect promotions, security clearances or re-enlistments. Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, NDRB is not authorized to change a reenlistment code. An unfavorable “RE” code is, in itself, not a bar to reenlistment. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter. Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.

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 P1900.16F), effective 01 September 2001 until Present.

B. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety .

C . Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity .

D . 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 .

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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