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

ex-PFC, USMC
Docket No. MD00-00999

Applicant’s Request

The application for discharge review, received 000801, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed to Medical-ADHD-should not have been enlisted.  The applicant requested a personal appearance hearing before a traveling panel closest to Lexington, KY.  The applicant listed a civilian counsel as the representative on the DD Form 293.  In the acknowledgement letter to the applicant, the applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010309.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety but did find inequity in the characterization of the applicant’s service.  The Board’s vote was Three to Two (3-2) that the character of the discharge shall change to: HONORABLE/SECRETARIAL AUTHORITY, SPD JFF1, authority: MARCORSEPMAN Par. 6214.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  Petitioner was not medically fit to be enlisted at the outset.

2.  Condition (ADHD) was so serious that results of its effect (basis for discharge) were normal and natural consequences of it.

3.  Procedural errors in due process violations in not making Attorney of Record part of discharge proceedings in violation of Regulations and Fifth Amendment to Constitution.

4.  Type and characterization of discharge wrong and totally inappropriate for the conditions known by the Marine Corps, and exacerbated by exposure to asbestos.  It was not noted in final medical examinations of either ADHD nor asbestos exposure.

Documentation

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

Copy of DD Form 214
Letter from applicant dated July 19, 2000
List of supporting documents
Military orders dated April 17, 1997 (3 copies)
Request for administrative discharge dated July 14, 1997 (3 copies)
CH.A.D.D. information (4 copies)
Franklin County Public Schools confidential integrated assessment report dated October 12, 1993 (2 copies)
Doctors evaluations dated March 9, 1994 (2 copies)
Letter from Bluegrass Physicians Management Group, LLC dated July 8, 1999
Referral, extended school series dated November 2, 1994
Attorney's affidavit (2 copies)
Letter from attorney to United States Marine Corps, Legal/Personnel Officer dated July 14, 1997 (2 copies)
Memorandum in support of discharge upgrade from attorney's office
Attorney's affidavit dated June 19, 2000
Copy of applicant's identification card for Lexington Community College
Copy of applicant's twin brother's identification card for Lexington Community College
Letter from Member of Congress dated December 14, 1998
Character/job reference from a manage of Baskin-Robbins, 31 Flavors dated March 11, 2000
Character reference dated March 6, 2000
Character reference dated December 29, 1998
Character reference from Pastor, Emmanuel Missionary Baptist Church dated March 27, 2000
Copy of memorandum in support of separation in lieu of trial for applicant and his twin brother (2 copies)
Copy of one page from Marine Corps Separation and Retirement Manual in reference to new entrant drug and alcohol testing
Letter from doctor University of Kentucky, College of Medicine, undated (2 copies)
Copy of Asbestos Bulk Sample Laboratory Analysis dated September 19, 1997
Letter to congressman from applicant and his twin brother dated October 15, 1998
Letter to congressman from Assistant Deputy Under Secretary of Defense (Safety and Occupational Health Policy) dated March 6, 1998
Two pages from Marine Corps Separation and Retirement Manual in reference to separation in lieu of trial by court-martial
Letter from attorney dated November 10, 2000
Copy of page 38 from a book (header says Food and Drugs)
Letter from attorney to Brigadier General, USMC, Marine Corps Base, Quantico, VA dated August 22, 1997
Copy of chronology of events
Letter to applicant's parents from University of Kentucky dated March 9, 1997 (2 copies)
Letter from Assistant Professor of Psychiatry dated May 19, 1997 (2 copies)
Copies of receipts (unreadable) (total of 6)
Letter to Commanding General, First Marine Aircraft Wing, Okinawa, Japan dated June 23, 1997 from applicant's attorney (2 copies)
Letter to attorney from Deputy Staff Judge Advocate, 1st Marine Aircraft Wing dated June 26, 1997
Letter from Member of Congress dated August 14, 1997
Paper on Attention Deficits in Children and Adults (2 pages)
Newspaper article, undated
Excerpt re: Attention Deficit-Hyperactivity Disorder, undated
Copy of applicant's criminal record check dated September 26, 2000

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		960316 - 960910	COG

Period of Service Under Review:

Date of Enlistment:  960911		Date of Discharge:  970909

Length of Service (years, months, days):

	Active:    00  11  29
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  54

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.6			Conduct:  2.3

Military Decorations:  None

Unit/Campaign/Service Awards:  None 

Days of Unauthorized Absence:  68

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:

970327:	Enlistment Report of Medical History:  Block 16: Have you ever been treated for a medical condition?  Applicant marked the no column.  Block 19: Have you ever been a patient in any type of hospitals?  Applicant marked the no column.  Block 21: Have you consulted or been treated by clinics, physicians, healers, or other practitioners within the past 5 years.  Applicant marked the no column.  Block 25: Physician's summary: Hx noted, NCD.

970505:	Applicant to unauthorized absence 0001, 5May97.

970712:	Applicant from unauthorized absence 1400, 12Jul97 (68 days/surrendered).

970728:	Administrative Separation Examination, Report of Medical History: Block 16: Have you ever been treated for a medical condition?  Applicant marked the yes column and wrote ADD-University of Kentucky Hospital.  Block 19: Have you ever been a patient in any type of hospitals?  Applicant marked the yes column and wrote University of Kentucky Hospital.  Block 21: Have you consulted or been treated by clinics, physicians, healers, or other practitioners within the past 5 years.  Applicant marked the yes column and wrote Dr S_ University of Kentucky Hospital Lexington, KY 40517.  Block 25: Physician's summary: NS/HX - ______ a ADD-NCD EPTE.

970829:	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 honorable conditions.  The applicant admitted guilt to the following violations of the UCMJ, Article 86: Unauthorized absence from 0001, 5May97 until 1400, 12Jul97.

970905:	GCMCA [Commanding General, Marine Corps Base, Quantico, VA] determined that applicant had no potential for further service, that separation in lieu of trial by court-martial was in the best interest of the service, and directed discharge under other than honorable conditions by reason of conduct triable by courts-martial.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 970909 under other than honorable conditions in lieu of trial by court-martial (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 but not equitable (D and E).

In considering the applicant’s first, second and fourth issues, the Board agrees that the applicant was not medically fit for enlistment and that the type and characterization of the discharge is wrong and inappropriate, but the mention of exposure to asbestos is not a decisional issue for the NDRB to consider.  In arriving at its opinion, the Board thoroughly explored the extensive medical, educational and behavioral documentation submitted.  It is clear from the record that the applicant should not have been enlisted, his diagnosis of ADD and treatment with various medications, including Ritalin, representing barriers to military service.  It is the opinion of this Board that the applicant did not fully comprehend the responsibilities he was assuming at the time of his enlistment and should not have been enlisted in the United States Marine Corps.  The Board finds award of a less than honorable discharge for misconduct subsequent to an enlistment that should not have been contracted is inappropriate.  Accordingly, full relief is granted and by a vote of 3 to 2 the Board grants the request and changes the character of the applicant’s discharge to Honorable by reason of Secretarial (SECNAV) Authority, SPD JFF1.

The applicant’s third issue argues due process violations in not making attorney of record part of discharge proceedings.  The Board disagrees.  Mr. J_s’ several memoranda and affidavit were part of the discharge proceedings and advocated for a General (under honorable conditions) discharge.  These documents were considered by the command and are a part of the applicant’s permanent service record.  However, after considering Mr. J_s’ recommendations, the Commanding General determined the appropriate discharge was under other than honorable conditions.  Paragraph 6419, MARCORSEPMAN clearly states in discussing Separation in Lieu of Trial by court-martial that, “Characterization of service normally shall be under other than honorable conditions…”  In approving the applicant’s request for separation in lieu of trial by court-martial, the Commanding General voided the Special Court-Martial which had been convened in this case and relieved the applicant of the burden of a punitive discharge.  Relief on this basis is denied.

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 P1900.16E), effective 
18 Aug 95 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 86, unauthorized absence for more than 30 days.

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 view DoD Directive 1332.28 and other Decisional Documents by going online at “afls14.jag.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:

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