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USMC | DRB | 2006_Marine | MD0600632
Original file (MD0600632.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. MD06-00632

Applicant ’s Request
The application for discharge review was received on 20060406 . 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 20070125 . 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 separation in lieu of trial by court-martial.


PART I - ISSUES AND DOCUMENTATION

Decisional Issues
The Applicant presented no decisional issues. The Applicant is seeking an upgrade to become eligible for Veterans Affairs Medical Benefits. The Applicant claims he is suffering from an untreated psychosis issue. He claims he currently has no treatment options at the VA due to his Other Than Honorable discharge.

Documentation
In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:
Applicant ’s statement in support of claim, dated January 4, 2006 (2 pages)
 Applicant ’s DD Form 214 (Member 4)
Applicant ’s DD Form 149, dated January 6, 2006
Letter to Applicant from Board for Correction of Naval Records, dated March 22, 2006
Letter to Applicant from Department of Veterans Affairs Medical Center, dated January 21, 2005
Cover letter to Applicant ’s DD Form 293 from North Carolina Department of Administration, dated January 18, 2006

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    20020726 - 20011201       COG
         Active: None
Period of Service Under Review :
Date of Enlistment: 20011202              Date of Discharge: 20050602

Length of Service (years, months, days):

 Active: 0 2 00 0 1 (Does not exclude lost time.)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 141 day s
         Confinement:              61 day s

Age at Entry: 1 7 (Parental Consent)

Years Contracted: 4
Education Level: 12                                 AFQT: 35

Highest Rank: PFC                                    MOS: 0311 (Rifleman)

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): Global War on Terrorism Service Medal, National Defense Service Medal, Rifle Qualifications Badge (Sharpshooter).

*Not Available


Character, Narrative Reason, and Authority of Discharge (at time of issuance):
UNDER OTHER THAN HONORABLE CONDITIONS/IN LIEU OF TRIAL BY COURT-MARTIAL, authority: MARCORSEPMAN Par. 6419.

 Chronological Listing of Significant Service Events :

030921:  Applicant assaulted a fellow Marine in HQA.

030928:  Applicant went UA during a layover in Turkey until 031115 when apprehended by MARFOREUR.

031120:  Applicant placed in pretrial confinement.

031205:  Charges of assault were preferred.

031213:  Applicant placed in pretrial confinement for twice breaking restriction.

040106:  Commanding Officer from 3/6 directed the inquiry of Applicant ’s mental capacity.

040108:  Charges were withdrawn and dismissed without prejudice.

 040331:  Report of Examination of mental responsibility and capacity of Applicant . At the time of the alleged criminal conduct the accused did have a mental disease or defect. AXIS I: Schizophrenia, undifferentiated type.
         Applicant was not able to appreciate the nature and quality or wrongfulness of his conduct.
         At the present time, the accused does not have sufficient mental capacity to understand the nature of the proceedings and to conduct or cooperate intelligently in his defense.
040419:  E-mail received from attending doctor that stated no one from unit had ever visited Applicant since his arrival to the CLNH in late December.

040601:  Applicant went UA from Camp Lejeune Naval Hospital after he was allowed to visit family.

040805:  Letter from Applicant ’s father stated the Applicant had fled to Turkey and was now a citizen living there.

041006:  Applicant returned to United States and was in treatment at CLNH Psychiatric Ward. The GCMCA requested Applicant be committed to the custody of the Attorney General for restoration of competency to stand trial.

041201:  Applicant is place into the Federal Medical Center in Butner, NC for testing and evaluation.

 050201 :  Counseling: Advised of deficiencies in performance and conduct ( Lack of maturity. ), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued. [ Applicant not available for signature.]

050210 :  Counseling: Advised of deficiencies in performance and conduct ( Failure to meet the Marine Corps height and weight standards .), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued. [ Applicant not available for signature.]

050301 :  Counseling: Advised of deficiencies in performance and conduct ( Lack of maturity. ), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued. [ Applicant not available for signature.]

050330:  Medical evaluation at Mental Health Department, Federal Medical Center, Butner, North Carolina by R_ G. L_, MD, Staff Psychiatrist and A_ W_, Ph.D., Staff Psychologist.
         Applicant hospitalized during 031229 to 040511 at the Naval Hospital at Camp Lejeune.
          AXIS I: Bipolar I disorder, most recent episode unspecified, severe with psychotic features
         AXIS II: No diagnosis.
         AXIS III: No medical diagnosis.
         AXIS IV: Psychosocial and environmental problems; problems related to interaction with the legal system/crime
         Arrest for the instant offense
         AXIS V: Global assessment of functioning scale: 90.
050330:  Applicant returned to pretrial confinement.

 050412:  Charges preferred for violation of the Uniform Code of Military Justice (UCMJ) Article 86: On or about 030928, without authority, absent himself from his unit, to wit: 6 th Marine Regiment, 2d Marine Division, located at Camp Lejeune, North Carolina and on or about 040601, without authority, absent himself from his unit, to wit: 6 th Marine Regiment, 2d Marine Division, located at Camp Lejeune, North Carolina, and did remain so absent until he was apprehended on or about 040904.

050429 :  Additional Charges preferred for violation of the Uniform Code of Military Justice (UCMJ) Article 128: On or about 030921, commit an assault upon Lance Corporal A_ D_, U.S. Marine Corps, by striking him on the head with a means likely to produce death or grievous bodily harm upon him, to wit: an M16A2 service rifle.

050506 :  Applicant , having consulted with counsel certified under UCMJ Art 27b, requested discharge for the good of the service to escape trial by court- martial. In the request the Applicant noted that his counsel had fully explained the elements of the offenses for which he was charged and that he understood the elements of the offenses. He further certified a complete understanding of the negative consequences of his actions and that characterization of service would be under other than honorable conditions. The Applicant admitted guilt .

050513:  Commanding Officer recommends Applicant be discharged under other than honorable conditions in lieu of trial by court-martial. Commanding Officer’s comments: There has been no determination of PFC S_( Applicant )’s mental competence for the second UA, however. He is accused of going UA when learned he was to be admitted to a federal mental hospital to determine his fitness to stand trial. He was gone from June 2004 until he was apprehended in September of 2004.
         If this SILT is approved, an other than honorable should be awarded.
050515:  Applicant admitted to our facility under Section 4241(d). It is the examiner’s opinion that Mr. S_( Applicant ) is now competent to stand trial. He is not suffering from a mental disease or defect to the extent that proceedings filed against him or assist properly in his own defense.

050515:  Applicant is able to understand the nature and consequences of the proceedings against him and to assist properly in his own defense. This certification is made and filed wit the Clerk of the Court pursuant to Title 18, United States Code, Section 4241(e).

 050516:  Commanding Officer recommends Applicant receive an under other than honorable discharge in the disposition of his request for separation in lieu of trial.

050525 :  SJA review determined the case sufficient in law and fact.

 050601 :  GCMCA, Commanding General, 2d Marine Division , directed the Applicant 's discharge under other than honorable conditions in lieu of trial by court-martial.


PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20050602 in lieu of trial by court-martial (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 introduced no decisional issues for consideration by the Board. The Applicant is requesting a general discharge. When a Marine’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions. Characterization of service as 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. The Applicant’s service was marred by the Applicant’s Commission of a Serious Offense on 2 occasions for violations of Article 86 (Unauthorized absence) and violation of Article 128 (Assault) of the Uniform Code of Military Justice (UCMJ). The Applicant’s misconduct included unauthorized absence, on two separate occasions for a period of more than 30 days. The Applicant’s conduct which form the primary basis for determining the character of his service, reflect his misconduct, and fall below that required for a general characterization of service. An upgrade to general would be inappropriate. Relief is therefore denied.

The Applicant is seeking an upgrade to become eligible for Veterans Affairs Medical 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 of the propriety and equity of the discharge.

On 20050504, the Applicant requested discharge for the good of the service to escape trial by court-martial. In the request the Applicant noted that his counsel had fully explained the elements of the offenses for which he was charged and that he was guilty of the offenses. He further certified a complete understanding of the negative consequences of his actions and that characterization of service could be under other than honorable conditions. The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. 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. 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 6419, SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F), 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 [e.g., 86, unauthorized absence for more than 30 days].

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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction . You should read Enclosure (5) of the Instruction 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 Instruction 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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