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USMC | DRB | 2006_Marine | MD0600183
Original file (MD0600183.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD06-00183

Applicant ’s Request
The application for discharge review was received on 20051101 . 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 20060915 . 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 Under Other Than Honorable Conditions by reason of misconduct due to the commission of a serious offense.

PART I -

APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated
Applicant ’s issues, as stated on the application:
“ My discharge wa s inequitable because it was based on a pattern of misconduct ; using NJP’s that were unjust and had no basis. While in service, I requested numerous times, to various people emotional, mental and physical help with my situation. I was ignored every time and still deployed, where ultimately the stress became too much. My discharge was based partially on unfavorable events between myself and my ex-wife that the communed refused to interfere and assist their Marine; and partially on my inability to mentally cope with the stress of my ex-wife, the command and war at the same time. I was placed in a combat environment when I was mentally unstable. The command disregarded my requests for assistance and disregarded my proof of innocence. ”
Documentation
 In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:

 Military protection order, dtd August 1 , 2002
 Military protection order, dtd September 4, 2002
 Treatment Recommendation P lan from Community Counseling Center, dtd August 27, 2002
 Eight pages from Applicant ’s service record
 Notice of Intent to Vacate , Housing Department, Camp Lejeune Family Housing , undtd
 Family Housing Voucher, dtd September 6, 2002
 Notice of intent to vacate government quarters from Housing Department, dtd October 1, 2002
 Leave and Earning Statement s for September, October, November and December 2002
 Money orders for September, November and December 2002
 Civil summons , State of North Carolina, County of Onslow , dtd October 29, 2002 (4 pages)
Letter from Applicant to Mr. E_ S_, Member of Congress , dtd February 24, 2003
 Letter from Applicant to Commanding Officer, dtd February 24, 2003 (3 pages)
Letter from Mr. E_ S_, Member of Congress, to Applicant , dtd July 7, 2003
 Case number from American Red Cross, dtd March 18, 2003
 E-mail form Task Froce Tarawa Rear A Co. 1 st Sgt to 1 st Sgt G_ F. M_, undtd
L e ave and Earning Statement for January 2003 with handwritten note from Applicant
Ltr from Applicant to Disbursing Officer, 2 nd MEB, dtd February 7, 2003
Ltr from Applicant to Disbursing Officer, 2 nd MEB, dtd February 7, 2003
 Leave and Earning Statement for February 2003 (2 pages)
Leave and Earning Statement for March 2003
Leave and Earning Statement for April 2003
Leave and Earning Statement for May 2003
Leave and Earning Statement for June 2003
 Post D eployment H ealth A ssessment, dtd September 5, 2003 (4 pages)
Letter from Applicant , dtd March 30, 2006

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive:         USMCR (DEP)      19980720 - 19990705       ELS
                  USMCR (DEP)      1999 1028 - 19991107      COG
          Active: None
Period of Service Under Review :
Date of Enlistment: 19991108              Date of Discharge: 20030711

Length of Service (years, months, days):

 Active: 03 08 04
         Inactive: None

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

Age at Entry: 18
Years Contracted: 4
Education Level: 12                                 AFQT: 37

Highest Rank: LCpl                                  MOS: 0621/2531

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): National Defense Service Medal, Meritorious Mast, Rifle Expert Award

*Not Available


Character, Narrative Reason, and Authority of Discharge (at time of issuance):
UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MARCORSEPMAN Par. 6210.6.

 Chronological Listing of Significant Service Events :

001107:  Acknowledged understanding of eligibility but not recommended for promotion to LCpl due to pending NJP for a period of 1 month. Applicant chose not to make a statement.

001205:  Acknowledged understanding of eligibility but not recommended for promotion to LCpl due to pending NJP for a period of 1 month. Applicant chose not to make a statement.

010105:  Acknowledged understanding of eligibility but not recommended for promotion to LCpl due to recent NJP for a period of 1 month. Applicant chose not to make a statement.

 010110:  NJP for violation of UCMJ, Article 121: At A Co, 8thCommBn, on or about 10 Aug 00, stole an ATM card, the property of PFC C_.
         Award: Forfeiture of $ 243 per month for 1 month, correctional custody for 30 days, reduction to E- 1 . Not appealed.
020930:  Counseling: Advised of deficiencies in performance and conduct (Unsatisfactory conduct by failing to comply with Company Commander’s orders, specifically not clearing housing in a timely manner, and inability to deal with personal matters .), necessary corrective actions explained, sources of assistance provided and discharge warning issued .
020930:  Counseling: Advised of deficiencies in performance and conduct (Unsatisfactory conduct by having an apathetic attitude, neglecting duties and responsibilities. Specifically toward counseling and daily duties.), necessary corrective actions explained, sources of assistance provided and discharge warning issued.
021025:  Counseling: Advised of deficiencies in performance and conduct (On 25 September 2002 violated Article 86 of the UCMJ by leaving my appointed place of duty after morning formation to clean my assigned base quarters but failed to remain at my quarters. Applicant remained absent without authority for approximately seven hours before reporting back to unit ), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
030213:  NJP for violation of UCMJ, Article 92 ( 3 specs):
          Specification 1: On about Sept 2002, SNM disobeyed an order to provide support for his wife and child.
         Specification 2: On about Sept 2002, SNM disobeyed an order to get a meal card and discontinue BAS.
         Specification 3: On about Dec 2002, SNM disobeyed an order by discontinuing support allotment to his wife and child.
          Award: Forfeiture of ½ months pay for 2 months, reduction to E- 2 . Forfeiture suspended for 6 months. Not appealed.
030317:  Camp Ryan, Kuwait, II MHG , 2d MEB. Medical Entry : 21 year old male brought to GAS with gun shot wound to right forearm. Corpsman on the scene assets the Marine. Marine gun shot wound was through and through. M.O. Note: Called to scene of Marine found down outside p ort -john . HM on scene noted possible gun shot wound to right forearm. P atient unable to give history of injury, although believed to be self-inflicted.
         A: Gun shot wound to right forearm, appears self-inflicted, unclear if intentional or accidental.
          P: 1. Initial oxygen face mask.
          2. IV placed left antecubital.
         3. Wound cleansed with Betadine and rebandaged with SAMS splint.
          4. Morphine.
         5. Med Evac to Surg Co Alpha/Camp Okinawa for ortho/Rad Eval, Combat Stress Eval also indicated - vi a ambul.
         6. Command aware.

 030317:  Late Medical Entry: 1 430 : Patient admitted to self-inflicted wound. States has been feeling depressed since assigned to this deployment. States has a failing marriage of 2 years and is in the process of divorce; has a one year old child in this marriage. Per patient has no “buddy – system” or anyone to relate with in his unit. Patient became “teary” and quiet. Patient is aware that psych consult was recommended; patient desires to speak with Combat Stress Staff. Patient encourage to talk to staff.

 030317:  Alpha Surgical Company, CSSG-15, Camp Okinawa.
 Psychiatric Evaluation: 21 year old sep arated PFC with 3 years 4 months CAD, stationed with 8 th Com Bn, to Alpha surgical Company for treatment at gun shot wound to right arm.
         He denies ongoing symptom of depression, sleeping and eating normally, functioning normally at work, although he states he feels no motivation, and professes he is ok.
          Impression:
AXIS I: Partner relationship problem, occupational problem.
          AXIS II: Deferred.
         AXIS III: S/C gun shot wound to right arm.
          Plan/Rec:
(1) Psychiatrically fit for duty. Risk for further S.A is low and acceptable.
         (2) No need for psych meds.
         (3) Patient advised to follow up with command chaplain and/or Combat Stress Platoon as needed.
          (4) Will follow in [unreadable] until D/C.
030318:  Medical Officer Summary Report of medical care surrounding gun shot injury on 030317 at approximately 1000.
          Patient was evaluated by Combat Stress Team/Psychiatry at 1900 on 17Mar03. Related circumstances surrounding actual injury as follows: Patient entered the head to kill himself, chambered round, but then began reading bible and looking at picture of son. Patient stated he was going to kneel and pray and in so doing, kicked over his loaded weapon, injuring right arm. Patient had no prior psych history or suicidal ideation but had recent stressors of troubled marriage, recent NJP, difficulty with command. Denies ongoing signs of depression. Denies specific precipitant for suicidal gesture except possible new allotment provide for wife. Mental status showed depressed but hopeful mood, tearfulness, no current suicidal ideations strongly encouraged by desire to see son again.
          Patient discharged to unit on 18Mar03 at approx 1600. Patient psychiatic assessment included partner relationship problem and occupational problem, with psychiatrically fit for duty. Risk for further suicide attempt deemed low/acceptable by provider. No need for medication. Patient advised to follow up with chaplain or combat stress platoon.

030620 :  NJP for violation of UCMJ, Article 86 : On about 12 April, 2003 at 2200, at Camp Ryan, Kuwait, SNM was UA from his place of duty (Roving Watch) .
Violation of UCMJ, Article 92 : On about 17 March, 2003 at 1000, at Camp Ryan, Kuwait, SNM violated camp weapons safety regulations by chambering a live round in his weapon while still inside the camp.
Violation of UCMJ, Article 115 : On about 17 March, 2003 at 1000, at Camp Ryan, Kuwait, SNM intentionally shot himself to avoid combat duty.
         Award: Forfeiture of $ 645 per month for 2 month s , restriction and extra duty for 45 days, reduction to E- 1 . Not appealed.

 030624 :  SJA review determined the case sufficient in law and fact.

 030624 :  GCMCA, Commanding General, 2d Marine Expeditionary Brigade , directed the Applicant 's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to commission of a serious offense. For reporting purposes, misconduct due to commission of a serious offense will be the primary basis.

Service Record Book contains a partial Adm inistrative Discharge package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030711 by reason of misconduct due to the commission of a serious offense (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).

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. In the Applicant’s case, in the absence of a complete discharge package and without credible and substantial evidence to refute the Board’s presumption, the Board invoked the presumption of regularity. Specifically, the Board presumed that the Applicant was properly notified of his Commanding Officer’s intent to administratively process the Applicant for separation and that the Applicant was afforded all rights which he elected at notification.

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 three retention warnings, and two nonjudicial punishment proceedings for violations of Articles 86, 92, 115 and 121 of the UCMJ. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the Marine Corps and falls far short of that required for an upgrade of his characterization of service. Relief is not warranted.

The Applicant contends his discharge is inequitable because it was based on a pattern of misconduct “using NJP’s that were unjust and had no basis.” Though the Applicant was multiple processed for misconduct due to pattern of misconduct and misconduct due to the commission of a serious offense, t he Applicant was ultimately discharged by reason of misconduct due to the commission of a serious offense. Neither the evidence of record nor the documents submitted by the Applicant demonstrate that the Applicant did not meet the criteria for discharge by reason of misconduct due to the commission of a serious offense or that he should not be held accountable for his misconduct. The Applicant was subject to nonjudicial punishment for v iolations of Articles 92, 115 and 121 of the UCMJ. Violations of Articles 92, 115 and 121 are considered serious offenses, for which punitive discharge is authorized is adjudged as part of the sentence upon conviction of by a special or general court-martial. While the Applicant implies via his supporting documentation and his issues that he did not violate Article 92 for offenses adjudicated on 20030213, the Board found the Applicant’s issue without merit. Each one of the Applicant’s violations of Article 92 adjudicated on 20030620 and the Applicant’s violations of Articles 115 and 121 of the UCMJ individually made the Applicant eligible for separation by reason of misconduct due to the commission of a serious offense. Relief denied.

The Applicant implies that his discharge was inequitable because his misconduct was the result of his command’s failure to assist him. Further, the Applicant contends that his discharge is inequi table bec ause his ability to serve was impaired stress from personal problems, his command and war. While he may feel that multiple stressors were the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service. The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions. 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. The Board discovered no impropriety after a review of Applicant’s case. 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. Paragraph 6210, MISCONDUCT of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 01 September 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 92, disobey order/regulation, Article 115, malingering, or Article 121, larceny .

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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