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USMC | DRB | 2006_Marine | MD0600146
Original file (MD0600146.rtf) Auto-classification: Denied


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

ex-Sgt, USMC
Docket No. MD06-00146

Applicant’s Request
The application for discharge review was received on 20051017. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions). 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 20061005 . 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 disch arge shall not change. The discharge shall remain General (Under Honorable Conditions) by reason of Disability , not in line of duty .





PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:
“My discharge was improper. It was based on one incident rather than my 60 months of honorable service with that incident. My DD 214 says that it was an involuntary discharge. A lthough I had completed the proper discharge paperwork and was not discharge until after my original separation date.”
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)    19981118 – 19990321               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19990322             Date of Discharge: 20041115

 Length of Service (years, months, days):

 Active: 05 07 25
         Inactive: None

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

Age at Entry: 1 8

Years Contracted: 5

Education Level: 12                                 AFQT: 79

 Highest Rank: Sgt                                    MOS: 2847

Final Enlisted Performance Evaluation Averages (number of marks): Enlisted performance reports were available to the Board for review.
Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): National Defense Service Medal, Marine Corps Good Conduct Medal, Sea Service Deployment Ribbon (3).


Character, Narrative Reason, and Authority of Discharge (at time of issuance):
GENERAL (UNDER HONORABLE CONDITIONS)/DISABILITY , OTHER , authority: MARCORSEPMAN Par. 8402.
Chronological Listing of Significant Service Events :

030709 :  Counseling: Advised of deficiencies in performance and conduct ( On 030704 Applicant was found to be in improper liberty attire and when approached Applicant was uncooperative when spoken to by a MGySgt. Also, Applicant was drunk in public and displaying disorderly conduct. ), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
040121:  USMC Fitness Report Directed Comments: Section A; item 5b, This report is non-observed. The reporting period does not meet the minimum observation requirements of 89 days. Section A; item 6b. MRO subject of a PCR DTG 010350Z Jan 04. MRO sustained major head injuries while driving under the influence and was ultimately transferred to a VA Medi c al Center in Richmond, VA. Medical report indicated BAC (.21). Initially, MRO was hospitalized in intensive care aboard Okinawa, Japan. MRO had multiple surgeries to repair several fractures to his face which led to his transfer to CONUS for supplementary treatment. Section J item 2, MRO unavailable for signature. His current medical condition disabled comprehensive skills. According to Med Pers, MRO current state preclude him from making any legal documents binding either verbally or written.
040216:  USMC Fitness Report Addendum Page : Sergeant W_ (Applicant) has been in this battalion since March 2000. Although this specific reporting period does not cover 90 days, his performance is well known to the RS and RO. He has been a competent NCO. Unfortunately, in the early morning hours of 1 January 04, after drinking heavily at a New Years Eve party, he drove his car recklessly and smashed into a wall. His injuries are extensive and most likely permanent. He was intending to EAS on 15 March 04. Currently his discharge is pending the outcome of a line of duty investigation and his medical condition. Were he not severely injured, he would have been held fully accountable for his actions on 1 January 04.
040430:  Applicant transferred by service record to I-I Staff Harrisburg, PA, while under medical treatment at brain damage injury center Martinsburg, WV .
041014:  Applicant issued orders to terminal leave while awaiting release from active duty on 15 November 2004.

 041115:  DD Form 214: Applicant discharged general (under honorable conditions) by reason of disability, not in the line of duty, authority MARCORSEPMAN par 8402.

Service Record Book contain ed a partial Discharge package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20041115 by reason of disability , not in line of duty (A) 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 (B and C). The Board presumed regularity in the conduct of governmental affairs (D).
On the Application for the Review of Discharge (DD Form 293), the Applicant indicated that he received a service characterization of Under Other Than Honorable Conditions and requests an upgrade to General (Under Honorable Conditions). A review of the Applicant’s DD Form 214 revealed that he received a service characterization of General (Under Honorable Conditions). Since the Applicant is requesting a change to a characterization that he already has, the Board treated the application as a request for a change to an Honorable discharge.

In the absence of a complete discharge package, the Board presumed that the Applicant was properly discharged in accordance with MARCORSEPMAN par 8402. The Applicant bears the burden of overcoming this presumption of regularity by presenting any substantial and credible evidence. The Applicant did not provide any documentary evidence to challenge the propriety or equity of the discharge. Therefore, the Board considered the Applicant’s discharge proper and equitable. Relief not warranted.

The Applicant implies that his discharge was inequitable because “it was based on one incident rather than [his] 60 months of honorable service. ” Applicable regulations require that a member’s characterization of service be based upon the member’s total performance of duty and conduct during the current enlistment. However, there are circumstances where conduct or performance of duty reflected by a single adverse incident may form the basis of characterization for a Mari ne ’s overall service. The incident need not result in formal punishment to be properly used to characterize a Marine’s service. The Applicant’s records show that on 20040101, after drinking heavily at a New Years Eve party, he drove his car recklessly and smashed into a wall . Notwithstanding the severity of his injuries, th e Applicant was responsible and accountable for his conduct . T his adverse incident was approp riately used to characterize hi s service as Gene ral (Under Honorable Conditions ) . Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the U.S. Marine Corps. Therefore, the Board concluded that the Applicant’s character of service was equitable as issued. Relief denied.

The Applicant contends that his discharge was improper because he “ involuntarily discharged although [he] had completed the proper discharge paperwork and was not discharged until after [his] original separation date. ” While the Applicant may have completed paperwork for separation on his intended EAS of 200403 21 , the Applicant wa s still on active duty when he was involved in an accident on 20040101. The records revealed that the Applicant sustained major head injuries while driving under the influence and was ultimately transferred to a VA Medical Center in Richmond, VA for medical treatment. Per applicable regulations, the Applicant was held pass his EAS for ongoing medical treatment and the Physical Evaluation Board (PEB) processing . On 20040823, PEB processing was completed, and o n 2004 1014 , the Applicant was ordered to terminal leave awaiting release from active duty on 20041115. The Applicant was discharged with a General (Under Honorable Conditions) by reason of disability due to misconduct – not in the line of duty. Based upon the above review, 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 error of fact, law, procedure, or discretion 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 8402, DISABILITY DISCHARGE WITHOUT SEVERANCE PAY of the Marine Corps Separation and Retirement Manual, (MCO P1900. 16F ), effective 01 SEPTEMBER 2001 to 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 .

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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