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

ex-Pvt, USMC
Docket No. MD99-00577

Applicant’s Request

The application for discharge review, received 990318, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a personal appearance hearing discharge review.  The applicant listed Civilian Counsel as his representative on the DD Form 293.

Decision

A Personal Appearance Hearing was conducted in Washington D. C. on 000316.  The NDRB determined that the basis for the discharge was proper and equitable.  After a thorough review of the applicant’s service record, the documentation submitted by the applicant, and the testimony of the applicant, the Board was unanimous in its decision not to upgrade the applicant’s discharge.  The discharge shall remain: Bad Conduct Discharge / As a result of a courts-martial (SPCM) – Other, authority: MARCORSEPMAN, par 1105. 

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.	On the day of his personal hearing, the applicant submitted one (1) Equity issue.  The previously submitted issue regarding the vacating of the Bad Conduct Discharge was withdrawn.  The applicants’s new equity issue is he was diagnosed in 1989 with schizophrenia.  He believes this condition existed for a period of time prior to and including his military service and affected his conduct in the Marines; his ability to serve satisfactorily.  His chemical imbalance is now being treated by medication and the applicant has been recommended for a vocational program.  His Bad Conduct Discharge impacts his ability to obtain employment.  Based on his undiagnosed schizophrenia while serving in the Marines, the Bad Conduct Discharge was not equitable in light of his schizophrenia which was diagnosed in 1989 and which obviously affected and caused his misconduct. 

Documentation

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

Copy of Record of Conviction by Court Martial
Commanding General Report of Proceedings to vacate
Social Security Administration, Earnings Record Informatiom – W--- B------, 
dtded April 28, 1999
        Faxed Letters from Mr. L-----, Re: W--- Bl----- -
 Letter of 13 March 2000 from Dr. S----- Gl------
 Letter of 7 March 2000 from Dr. C------ and Ms. J------, RN
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None
	Inactive:  USMCR(J)		800623 – 800721	COG

Period of Service Under Review:

Date of Enlistment:  800722		Date of Discharge:  840321

Length of Service (years, months, days):

	Active:    03  08  00
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 

Education Level:  12			AFQT:  43

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.8 (9)			Conduct:  3.2 (9)

Military Decorations:  None

Unit/Campaign/Service Awards:  None 

Days of Unauthorized Absence:  3 

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

BAD CONDUCT DISCHARGE/As a result of a courts-martial (SPCM) - Other, authority:  MARCORSEPMAN Par. 1105.

Chronological Listing of Significant Service Events:
810112:	Counseled for lack of cleanliness in living space and failure to pass barracks inspection.

810119:	Counseled for unsatisfactory conditions of living space and failure to pass barracks inspection.
  
810813:	NJP for violation of UCMJ, Article 92: Disobedience of a lawful order.
Awarded extra duties for 7 days.  Not appealed.

811001:	Counseled that not recommended for promotion to LCPL for the month of Oct 91. 

811002:	Counseled on misconduct for being apprehended by military police for suspected possession of marijuana.

811005:	Counseled that not recommended for promotion to LCPL for the month of Nov 81.

811201:	Counseled on responsibility and duty not to be absent from appointed place of duty.

811208:	NJP for violation of UCMJ, Article 134: Possession of a trace amount of marijuana.
	Award:  Forfeiture of $300 per month for 2 months, restriction for 45 days, reduction to E-1.  Not appealed.

820920:	NJP for violation of UCMJ, Article 134: Misuse of government property by driving a jeep without authority, violation of UCMJ Article 108: Destruction of government property by damaging a jeep and flood lights unit.
	Award:  Forfeiture of $250 per month for 2 months, restriction and extra duty for 30 days, reduction to E-X.  Not appealed.

821029:	To confinement awaiting SPCM.

821123:	From confinement, to duty.

830111:	To confinement awaiting SPCM.

830123:	Special Court-Martial.
	Charge I: violation of the UCMJ, Article 91 (2 Specifications):
	Specification 1: Disrespect in language toward CPL T_____ his superior noncommissioned officer. 
	Specification 2: Disobeyed a lawful order from CPL T_____ his superior officer. 
	Charge II:  violation of the UCMJ, Article 128 (2 Specifications): Specification 1: Did unlawfully strike CPL T____ his noncommissioned officer, Specification 2: Did unlawfully assault CPL T_____ by striking him in the face by a means likely to produce grievous bodily harm.
	Findings:  to Charge I and specification 1 thereunder, not guilty.  To Charge I and specification 2 thereunder, guilty.  To Charge II and specification thereunder, not guilty.  To Charge II and specification 2 thereunder, guilty.  
	Sentence:  Confinement at hard labor for 3 months, forfeiture of $150.00 per month for 4 months, reduction to E-1, and a bad conduct discharge.
	CA 830303:  Sentence approved and will be executed, but the execution of that portion thereof of adjudging a BCD is suspended for a period of 12 months , at which time, unless soon vacated, the BCD portion of the sentence shall be remitted without further action.
	SA 830318:  Sentence as approved, partially suspended, and ordered executed by the convening authority is approved. 

830325:	From confinement, to duty.

830405:	Counseled for deficiencies in performance and conduct.  [SPCM for disrespect, assault and disobedience; NJP for disobedience of a lawful order, NJP for misuse and destruction of government property, and NJP for disobedience of a lawful order and possession of marijuana.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

830623:	NMCCMR:  Affirmed findings and sentence.

830923:	COMA: Petition for review denied. 

831123:	Counseled that not recommended for promotion to PFC for the month of Dec 83.

840101:	Counseled that not recommended for promotion to PFC for the month of Feb 83.

840321:	SSPCMO:  Article 71c, UCMJ, having been complied with, Bad Conduct discharge ordered executed.

980511:	NDRB documentary record review Docket Number MD98-00458 conducted.  Determination:  discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 840321 with a bad conduct discharge which was the sentence adjudged by a properly constituted special court martial that was determined to be legal and proper, affirmed in the legal chain of review and executed (A and B).  The Board presumed regularity in the conduct of governmental affairs (C).  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 (D and E).

Regarding the applicant’s equity issue, the Board has no authority to change a punitive discharge to a medical based discharge.  The applicant’s contention that his misconduct was the result of his schizophrenia cannot be decided by this Board.  Of note, there was no documentation in the applicant’s health or service records to indicate a medical problem contributed to the applicant’s misconduct.

To pursue the equity issue, the applicant must forward his request via DD Form 149, enclosed, to the Board for Correction of Naval Records, 2 Navy Annex, Washington DC 20370-5100 for consideration.

Pertinent Regulation/Law (at time of discharge)

A.  Paragraph 1105, DISCHARGE ADJUDGED BY SENTENCE OF COURTS-MARTIAL, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16C), effective 821001 until 890626. 

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 128 & 91. 

C.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

D.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

E.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

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 obtain a copy of DoD Directive 1332.28 by writing to:

		DA Military Review Boards Agency
		Management Information and Support Directorate
		Armed Forces Reading Room
		Washington, DC  20310-1809

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:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		Washington Navy Yard
		720 Kennon Street SE Rm 309
		Washington, DC  20374-5023