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

 ex-Pvt, USMC
Docket No. MD99-00896

Applicant’s Request

The application for discharge review, received 990616, requested that the characterization of service on the discharge be changed to general/under honorable conditions.  The applicant requested a documentary record discharge review.  The applicant listed the Veterans of Foreign Wars as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000525.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MARCORSEPMAN Par. 6210.6.

The NDRB did note an administrative error on the original DD Form 214.  Block 28, Narrative Reason for Separation should read:  “MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE – ALL OTHER (BOARD REQUIRED BUT WAIVED)” vice “COMMISSION OF A SERIOUS OFFENSE – ALL OTHER (BOARD REQUIRED BUT WAIVED”.  The original DD Form 214 should be corrected or reissued as appropriate. 

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  Dear Sirs:

This letter is because of dissatisfied with the results of the administrative separation proceedings on grounds of newly discovered evidence and fraud on the court and under article 69 for relief based on error prejudicing my substantial rights and inappropriateness of sentence.  I was represented by Captain P_ A_ throughout the process leading to my summary court-martial.  Captain P_ A_ was very vague in explaining my rights and deceived me into agreeing to a pretrial agreement instead of fighting the case.   He deceived me into wavering my rights to an administrative discharge board.  He threatened me with 6 months jail time if I fought it and that after my 6 months jail time everything could be brought back up against me. In my court-martial charge II, violation of the UCMJ, Article 108, willfully damage by stabbing with knife or blade drawers, bedstead or furniture, military property of the United States.  This is false because on June 12, 1998 I reported to BAS for treatment for injuries sustained in the altercation my blood test collected at 9:15 a.m. (7 hrs after the altercation) showed blood alcohol gases of 0.092 This was a lot higher 7 hours previous to it having been drawn.  I was too inebriated to willfully damage property.  This was not presented in my court-martial.  Charge III, violation of the UCMJ, article 128, assault Private First Class D_ D_ F_ by striking at him with a closed fist or hand, specification 2, unlawfully push Private E_ M_ D_ with my hands.  Specification 3: commit an assault upon Private E_ M_ D_ by pointing at him with a dangerous weapon to wit: a butterfly knife. Private E_ M_ D_ and D_ D_ F_ both assaulted me and were pounding on me with their fists and feet and Private E_ M_ D_ bit my ears several times see my military health records of 12 June 1998 7 hrs after the altercation human teeth marks and swelling on my ears.  All this time Private First Class B_ S_ K_ and Lance Corporal D_ C_ N_ were watching Private E_ M_ D_ and Private First Class D_ D_ F_ beat me up with the door to my room locked I was too inebriated to defend myself and the knife was pulled in self defense.  Keep in mind that Private E_ M_ D_ was attending alcohol concealing and was being concealed at SACO for a problem with alcohol and was drinking at the time.  Both Private E_ M_ D_ and Private First Class D_ D_ F_ were beating me up neither one got charged with anything and I ended up in the hospital.  Both of these Marines were always in and out of trouble and were up on charges N.J.P. at the time.  Neither one of them were creditable witnesses.  They’re probably in the Brig in Okinawa.  All this was never brought up at my court-martial.  Charge IV violation of the UCMJ, article 134 specification 1, on or about 12 June 1998 drunk and disorderly.  I was in my room wasn't bothering anyone and was jumped by two Marines and two other Marines were watching locked the door.  None of them had any business in my room were not invited, and all were drinking lacquer. Specification 2 & 3 this was out of fear and self defense all these Marines had threatened me with Forty oz beer bottles to kill or maim me.  This was never brought up at my court-martial and these Marines were never charged.  Captain P_ A_ wasn't representing my interests and was only looking for the interests of the government.  The court-martial officer did not thoroughly and impartially investigate both sides of the matter.  Therefore there was error prejudicing my substantial rights and there was inappropriateness of sentence.  Thank you for your time and attention.  Sincerely

2.  Document 2 page 3 paragraph #1 (See psychological evaluation)
Service medical records Bilateral Tendentious of the feet hip and low back pain, wrist conditions and bursitis in both hips.  Should have had a medical discharge.
Service medical records of June 12, 1998

Documentation

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

Veterans of Foreign Wars comments
Copy of DD Form 214 (3 copies)
Copy of psychological evaluation dated October 16, 1998
Statement from applicant (petition)

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		970331 - 970421	COG

Period of Service Under Review:

Date of Enlistment:  970422		Date of Discharge:  980928

Length of Service (years, months, days):

	Active:    01  05  07
	Inactive:  None

Age at Entry:  20			Years Contracted:  4

Education Level:  12			AFQT:  31

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.4 (3)			Conduct:  4.4 (3)     (No discharge or SCM marks)

Military Decorations:  None

Unit/Campaign/Service Awards:  None 

Days of Unauthorized Absence:  25 

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:

970506:	Branch Medical Clinic: A: Right ankle sprain.  P: Ice to area for 30 minutes while at BAS...no duty x 24 hours, ice and elevate right ankle for 20 minutes each hour, ambulate with crutches only, stretch as prescribed 10 minutes each hour.

970507:	Medical: A: Right ankle sprain Resolving. P: Continue prescribed medical regm and medicine.  Pt understood tx tdx....to LD x 24....

970616:	Branch Medical Clinic: A: Right ankle sprain.  P: Consulted with HMO...light duty for 48 hours, ice and stretch (continue), RTC PRD/pt ed on Dx/Tx. 

970708:	MCRD Podiatry: Ankle brace issued.

970715:	MCRD Podiatry: A: Tendonitis.

970730:	NAVHOSP: A: Fx at distal fibula.  P: Discussed option with applicant, will recheck with me today.

970812:	Medical: A: R/O stress fracture left foot.  P: Applicant to Devil Dog BAS for further DX and TX.  A:  Metalasalgia.  P: ...light duty for 3 days, RTC if symptoms do not improve.

970818:	Medical: A: Stress fracture midshaft 2nd MT.  P: Stress fracture protocol sheet given, light duty for 30 days, no running/humps/climbing.  Pt may PT at own pace, motrin x 10 days, consult to Sports Medicine Clinic, recommend to MAT Co until condition resolves, reeval after 30 days for full duty.

970910:	NAVHOSP: Started on ankle mobilization interventions and exercise therapy for musculoskeletal injuries (MOBEX) protocol.

970917:	NAVHOSP: A: Unresolved stress fracture left foot/uncompleted protocol.  P: Return to sports medicine to continue stress fracture protocol.

970919:	NAVHOSP: A: Heat rx.  P: No running until can walk pain free.

971001:	NAVHOSP: A: Consider stress fracture.  P: Continue light duty with crutches & stress fracture protocol for 14 days, RTC prn increase SX's in 2 weeks....

971104:	Medical: Applicant returned to full duty.

980112:	BAS MCBH: A: Healing stress fracture in 2, 3, 4 metatarsals/healing fracture of distal fibia/_____ tendonitis in both ankles.  P: Physical therapy continue, LLD x 2 weeks, RTC if problems arise, motrin for 2 weeks.

980113:	Tripler Army Medical Center: A/P: Old stress fracture, activity modification, grad increase activity to pain F/U ___ MD.

980205:	BAS MCBH: A: Healing fracture 3rd 4th metatarsals, Fracture right fibia distal to knee.  P: LLD for 2 weeks, 1000 appointment with Lt M_, RTC if symptoms.  Addendum - Pt came from SOI with fractures.  Pt states foot (lt); fibular region (Rt) improved.  Cont. light activity thru 20Feb98 as per chit.  Extenson tendonitis x 2-3 wks still aggravating - Send to PT for this - stretch/ice.  Repeat fibular/MT x-rays around 20Feb98 if cont. pain with increasing activity.

980429:	NJP for violation of UCMJ, Article 86:
Specification: Unauthorized absence 0400 - 0600, 980424.
Awarded forfeiture of $242.00 per month for 1 month, restriction and extra duties for 14 days.  Not appealed.

980610:	Medical: A: Bilateral ankle instability.  1. Motrin, 2. ice ankle, 3. 2 x light duty, 4. physical therapy if treatment doesn't resolve in 2 wks.

980612:	Competence for duty examination: Return to full duty.  Lab:  ASAP ETAHNOL: 0.092.

980629:	Medical: A: Depression/anger control.  P: Family service center at 1430 29Jun98, chaplain, f/u PRN.

980709:	Medical: A: Bilateral ankle instability.  P: naprosyn...physical therapy appt 15July98...7 light duty, RTC PRN.

980710:	Addendum: Pt claims alcohol not involved for most part, however discuss with command if SACCO referral appropriate.  Agree with above.  Do not believe that patient is a danger to himself or others.  I question slightly pt's motives.  He now claims that violent dreams are becoming more bothersome.  He met with FMC counselor & felt unfulfilled with this B/C he wants to meet a real mental health professional. Pt admits to poor appetite & feeling down lately esp aggravated by legal problems.  Discussed with FSC counselor and he agrees probably mostly anger control problems, but pt did not open up fully with him.  Exam within normal limits with exception of mild-moderately flat affect.  Will consult with psych per pt's request (depression/anger control)  Poor insight!

980714:	Mental Health Evaluation: Diagnosis: Axis I: Occupational problem, Alcohol dependence. Axis II: Antisocial personality disorder, Axis III: None. Axis IV: Lack of support system and concern about the welfare of his family.  Axis V: Current GAF: 58.  Recommendations: Psychologically fit for duty and fully accountable for actions...encouraged to abstain from further tobacco use...encouraged to attend stress-management classes...apprised of the above recommendations and understands...no follow-up counseling is needed at this time...command contacted and apprised of the above recommendations.

980720:	Medical: A: ROM & strength are WNL's.  P: Suggest refer to ortho for pain.  Patient to begin strengthening inv & ev.  Recommend patient not perform 9 mile run on Thursday.  Patient understands plans, goals - exercises.

980730:	Summary Court-Martial.
	Charge I: violation of the UCMJ, Article 86.
	Specification: Unauthorized absence.
	Charge II: violation of the UCMJ, Article 108
	Specification: Willfully damaging property of the United States.
	Charge III: violation of the UCMJ, Article 128 (3 specs):
	Specification 1: Assault on Pvt by pushing with hands.
	Specification 2: Assault on Pvt with a dangerous weapon.
	Specification 3: Assault with a dangerous weapon
	Charge IV: violation of the UCMJ, Article 134 (3 specs):
	Specification 1: Drunk and disorderly conduct.
	Specification 2: Provoking speeches or gestures to Pvt.
	Specification 3: Provoking speeches or gestures.  
	Finding: to Charge I, II, II and IV and the specifications thereunder, guilty.
	Sentence:  Forfeiture of $617.00, confinement for 1 month, reduced to Pvt.
	CA action 980730: Sentence approved and ordered executed except for confinement in excess of 1 month.  Reduction to pay grade E-1, and forfeiture of $617.00 for 1 month.

980730:	Fit for confinement. 1. 11Aug98 the pt will need transport to K-Bay Mental Health for psychology appt....2. b/l ankle instability (pain) increased on right - f/u with ortho after out of brig. Activity to pain tolerance in brig NSAID's prn. 3. Greater ______ bursitis - stretches given.

980731:	Medical: S/P Member would like motrin for hip bursitis and ankle pain he has had.  Ortho pending.  Mortrin 800 mg.

980803:	Medical: A: 1. Unresolving B-lat hip bursitis, 2. Pain to foot with question on resolving distal r fib fracture, 3. Pain to l foot with question on resolving.  P: Motrin...ortho consult..consulted Dr...continue LD.

980804:	Ortho Clinic: A: 1. Ankle pain due to stress ___, 2. R wrist tendonitis, 3. B hip bursitis.  All non-surgical at this time conserative 7 x at this time.  P: Will switch ____ NSAID....continue splint R wrist Light duty recommended to give time to heal.  Likely will improve with rest.  Consider steroid injection if no improve 4-6 weeks.

980807:	Medical: A: Passive aggressive type disorder.  P: Cont Ortho and mental health....
 
980817:	Medical record: A: Rt wrist tendonitis 2 R/0 Fx.  P: Phone consulted Dr...to Makalapa for x-ray and further eval, continue motrin as Dx, Pt educated to DX/RX/side effects, RTC if sx worsen.

980817:	Medical: Normal wrist.

980826:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

980901:  	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

980903:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.  The factual basis for this recommendation was violations of the UCMJ to include willful damaging of government property and assault with a dangerous weapon or means likely to produce grievous bodily harm or death. 

980914:	SJA review determined the case sufficient in law and fact.

980922:	GCMCA [Commanding General, Marine Corps Base Hawaii] directed the applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

980926:	Medical: A: Hip pain (probable bursitis per history). P: Rx Voltaren 75 mg...pt educ with or f/u final PE, etch.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 980928 under other than honorable conditions for misconduct due to the commission of a serious offense (A).  The Board presumed regularity in the conduct of governmental affairs (B).  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).

In the applicant’s issue 1, the Board found the applicant provided no documentary evidence to substantiate his allegations. The applicant was found guilty at a summary court-martial for violations of UCMJ, Articles 108, 128, 86, and 134.  Relief denied.

The applicant believes he warrants a medical discharge.  The Board determined that there was no medical board done on him, that his medical condition did not warrant such a board.  Relief denied.

Pertinent Regulation/Law (at time of discharge)

A.  Paragraph 6210, MISCONDUCT of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 18 Aug 95 until present). 

B.  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.  

C.  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.

D.  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, D.C.  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, D.C.  20374-5023