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USMC | DRB | 2008_Marine | MD0801250
Original file (MD0801250.rtf) Auto-classification: Denied
        
ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20080513
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MARCORSEPMAN

Applicant’s Request: Characterization change to:
                  Narrative Reason change to:

Summary of Service

Prior Service:
Inactive: USMCR (DEP) 19990 731 - 199 70810                Active:

Period of Service Under Review:
Date of Enlistment: 19970811      Period of E nlistment : Years Months      Date of Discharge: 19991129
Length of Service : Yrs M on ths 1 8 D a ys          Education Level:         Age at Enlistment:       AFQT: 73
MOS: 0331         Highest Rank:    Fitness R eports:
Proficiency/Conduct M arks (# of occasions):       ( ) / ( )
 Awards and Decorations ( per DD 214): Rifle Pistol AFEM (SWA)

Periods of CONF : 19990909 – 19991011 (33 days) ,
UA: 1 9990621 – 1999062 2 , 0701 – 1245 ( 1 Day, 5 Hrs, 44 Mins) .

NJPs :
19980608: Article 86 (U nauthorized Absence) 0731, 19980601 – 0300, 199 80607 (5 Days, 19 Hrs, 29 Mins) .
Awarded : FOP RESTR EPD Susp – NONE.
19990603: Article 86 (Failure to go at the time prescribed to his place of duty) ;
Article 89 (Disrespect) , 2 specifications;
Article 91 ( Disrespect in language) ;
Article 92 (Failure to obey orders) , 2 specifications.
Awarded : RIR FOP, EPD, RESTR. Susp : NONE.
19990624: Article 86 (Failure to go at the time prescribed to his place of duty) restriction muster , 2 specifications;
Awarded : FOP, EPD, RESTR. Susp : EPD, RESTR.

19991020: Article 89 (Disrespect) ;
Article 90 (Willfully disobey) , 2 specifications;
Article 91(Disrespect, willfully disobey, and assault) , 3 specifications;
Awarded : RIR FOP. Susp : NONE.
SCMs: 1
        19991026: Article 89 (Disrespect);
 Article 90 ( Willfully disobey), 2 Spec ifications;
 Article 91 ( Disrespect, willfully disobey and assault), 3 Spec ifications.
         Sentence : NONE. Pre-trial agreement. Pled guilty to all charges.
SPCMs:

CC:      



6105 Counseling :
         19980828: For disrespect, failure to obey orders, willful neglect & abuse of government property, malingering , and
         straggling. Specific corrective actions provided.
19990316: Not recommended for promotion due to lack of M OS knowledge.
19990510: Not recommended for promotion due to pending charges.
19990630: Not recommended for promotion due to NJP.

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error s on the original DD Form 214:

         “ 970811 ”
         Block 29, Dates of Time Lost During this Period should read: “(40) – (30) 990909 – 991011, (1) 990621 – 990622, (6) 980601 – 980607 ”
        
The NDRB will recommend to the Commandant of the Marine Corps that the DD 214 be corrected as appropriate.
Types of Documents Submitted/reviewed

 Related to Military Service:      DD 214:          Service and/or Medical Record:            Other Records:

Related to Post-Service Period:  
         Employment:                        Finances:                          Education /Training :     
         Health/Medical Records:           Substance Abuse:                           Criminal Records:       
         Family/Personal Status:                   Community Service:                References:              
Additional Statements From Applicant:             From Representat ion :              From Member of Congress:
Other Documentation (Describe) :

Pertinent Regulation/Law

 A Paragraph 6210, MISCONDUCT , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 31 January 1997 until 31 August 2001 .

B. 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 V, Para 502, Propriety and Para 503, Equity .

C. 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 s 89, 90, 91, and 92 .


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

Applicant’s Issues

 1. Medical benefits
2. Mistreatment by peers contributed to misconduct
3. Post service mental health diagnosis mitigating factor in misconduct.

Decision


 Date: 20 08 0911    Location: Washington D.C .        R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall MISCONDUCT .
Discussion

 : ( ) . either which the Board cannot form the basis of relief for the Applicant, or the Board does not have the authority to grant the relief for which the Applicant petitioned. The Applicant is directed to the Addendum , specifically the paragraph concerning , regarding .

: ( Equity ) . The applicant contends a sexual hazing incident impaired his ability to serve and contributed to his misconduct. While he may feel this was the underlying cause of his misconduct, the e vidence of record does not demonstrate the Applicant was not responsible for his conduct or he should not be held accountable for his actions based on a hazing incident. In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Applicant’s Service Record reveals a pattern of misconduct prior to the hazing incident. He was awarded non-judicial punishment for violation of the Uniformed Code of Military Justice (UCMJ) Article 86. Furthermore, the Command afforded the Applicant an opportunity to overcome his deficiencies when it elected to not award non-judicial punishment for subsequent violations of Articles 91, 92, 108, 115, and 134. Following the mistreatment by his peers the Applicant continued his misconduct and was awarded three more non-judicial punishments for violations of Articles 86 and multiple specifications for violations of Articles 89, 90, 91, 92.

When a Marine’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions. An 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 numerous, and various, UCMJ Article violation constitutes significant negative conduct on the Applicant’s behalf and was the foundation for the “Under Other Than Honorable” characterization . The board found an upgrade to honorable would be inappropriate.

: ( ) . The Applicant contends early symptoms of his subsequently diagnosed paranoid schizophrenia mitigate his misconduct. When reviewing a discharge, the NDRB does consider the extent to which a medical problem might affect an Applicant’s performance and ability to conform to the military’s standards of conduct and discipline. The NDRB generally does not consider the circumstances surrounding the Applicant’s stated condition, the implied incorrect diagnosis, nor the medical treatment given to the Applicant to be of sufficient nature to exculpa t e the Applicant’s misconduct. In fact, the NDRB did not find where a medical diagnosis mitigated the Applicant’s misconduct but quite the opposite. The p sychiatric evaluations made throughout the current period of enlistment found the Applicant responsible for his actions. A 28 April 1999 evaluation by the Division psychiatrist determines the Applicant to have a mild antisocial personality disorder but that he was fit for full duty. He furthe r determines that the personality disorder “ might render him not suitable for service – if (he) has continued deficiencies in performance and/or behavior not corrected by command counseling/corrective actions…. ” A later evaluation did not find him to be irrational or psychotic and determined him to be responsible for his actions and fit for full duty.




The Board did review the medical records and evidence which occurred subsequent to the Applicant’s discharge but determined its merit did not negate the medical diagnosis made by the military which determined at the time of the misconduct the Applicant was responsible for his actions. The medical diagnosis conducted after the discharge was not found to mitigate the misconduct. The Board determined based on the medical diagnosis made during the enlistment period in question an upgrade would be inappropriate.

After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Record, Discharge Process and evidence submitted by the Applicant, the Board found



ADDENDUM: Information for the Applicant

 Complaint Procedures : 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 to the Joint Service Review Activity, OUSD (P&R) PI-LP, The Pentagon, Washington, DC 20301-4000 . 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 . ”

Additional Reviews : Subsequent to a document review, former members are eligible for a personal appearance hearing, provi ded the 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. If a former member has been discharged for more than 15 years , has already been grante d a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

 Service 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.
Employmen t / Educational Opportunities : 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.

Reenlistment/RE-code: Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to change a reenlistment code. Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities. 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.
Medical Conditions and Misconduct : DoD disability regulations do not preclude a disciplinary separation. Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons. Whenever a member is being processed through the Physical Evaluation Board, and subsequently is processed for an administrative involuntary separation or is referred to a court-martial fo r misconduct, the disability evaluation is suspended. The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings. If the action includes either a punitive or administrative discharge for misconduct, the medical board report is filed in the member’s terminated health record. Additionally, the NDRB does not have the authority to change a narrative reason for separation to one indicating a medical disability or other medical related reasons. ” Only the Board for Correction of Naval Records can grant this type of narrative reason change.
Automatic Upgrades - 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 may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.

Issues Concerning Bad-Conduct Discharges (BCD ) – Because relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts, issues relating to the Applicant’s innocence of charges for which he was found guilty cannot form a basis for relief. With respect to a discharge adjudged by a special court-martial, the action of the NDRB is restricted to upgrades based on clemency. Clemency is an act of leniency that reduces the severity of the punishment imposed. The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

Board Membership: 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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