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

 ex-Pvt, USMC
Docket No. MD02-00924

Applicant’s Request

The application for discharge review, received 020611, requested that the characterization of service on the discharge be changed to honorable.  The Applicant requested a documentary record discharge review.  The Applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030116.  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/INVOL DIS (BOARD WAIVED) (MISCONDUCT) SER MIL/CIV OFFENSE, authority: MARCORSEPMAN Par. 6210.6.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  My discharge under other than honorable conditions was a result of mental illness caused by extreme anxiety, which was brought about by my service in the Marine Corps.

Documentation

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

Dept of Veterans Affairs Character of Discharge Decision dated 020130
Statement of Applicant dated 020318
Resume of Applicant (not dated)
Associates Degree for Applicant, Salt Lake Community College dated 000818
Citigroup Pay Statement for Applicant dated 020515
Utah Marriage License for Applicant dated 990210
N. Kentucky University Grades Report for Applicant dated 020509
DD Form 214 for Applicant dated 950420 with Correction (DD Form 215)

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		921015 - 921109	COG

Period of Service Under Review:

Date of Enlistment:  921110		Date of Discharge:  950420

Length of Service (years, months, days):

	Active:    02  05  11  (includes 24 days confinement)
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  73

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.7 (7)			Conduct:  3.5 (7)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM 930205

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/ INVOL DIS (BOARD WAIVED) (MISCONDUCT) SER MIL/CIV OFFENSE, authority:  MARCORSEPMAN Par. 6210.6.

Chronological Listing of Significant Service Events:

940222:	NJP  for violation of UCMJ, Article 86 (2 specs):
Specification 1: Absence from appointed place of duty at 0745-0815 on 940214.
Specification 2: Absence from appointed place of duty at 1200 on 940217
Article 92:
Specification: Dereliction in the performance of duties on 940214.
Awarded forfeiture of $226.00 per month for 1 month, restriction and extra duties for 14 days.  Forfeiture suspended for 6 months.  Not appealed.

941013:	Counseled for deficiencies in performance and conduct.  [Failure to be at appointed place of duty at 0715 on 941005; poor judgment, specifically making a decision to go out of bounds on a 72-hour weekend.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

941026:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 134:
Specification: Wrongfully/intentionally jumping from the USS TRIPOLI on 940629.
Finding:  to Charge I and the specification thereunder, guilty.
	Awarded forfeiture of $554.80 per month for unspecified month(s), and confinement for 29 days, reduction to Pvt.  No indication of appeal in the record.
CA action 061024:  Sentence approved and ordered executed.

950201:	Counseled for deficiencies in performance and conduct.  [Failure to comply with the UCMJ, willfully and intentionally jumping ship, and subsequent court martial.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

950201:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense as evidenced by the results of the Summary Court Martial of 941026.

950201:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to make written statements in rebuttal and to obtain copies of the documents used to support the basis for the separation.

950202:	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 the Summary Court Martial conviction evidencing the commission of a serious offense.  Commanding Officer’s comments (verbatim): "Since his arrival at this command, [Applicant] has been a marginal performer, at best.  He has shown little regard for his work, his fellow Marines, and himself.  His recent Summary Court Martial conviction for jumping off a ship proves to me that he has very little respect or concern for the lives of himself and others.  He has unnecessarily risked the loves of those people who were required to rescue him, an action which is unacceptable and should not be tolerated.  His unauthorized absence further causes me to believe that [Applicant] is completely unreliable and of no value to this command or the Marine Corps."

950330:	SJA review determined the case sufficient in law and fact.

950405:	GCMCA (Commanding General, 1st Marine Division (Rein), FMF) directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 950420 under other than honorable conditions for misconduct due to the commission of a serious offense (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).

Issue 1.  The Board does not consider the circumstances surrounding the Applicant’s stated mental condition to be of sufficient nature to warrant an upgrade to his characterization of service.  Although a competent medical authority found the Applicant to be psychologically unsuitable for further service, a discharge for misconduct normally takes precedence over a discharge for medical reasons.  A characterization of service of under other than honorable conditions is warranted when the member's conduct constitutes a significant departure from that expected of a Marine.  The Applicant’s service was marred by award of nonjudicial punishment (NJP) on one occasion, a summary court-martial and adverse counseling entries on other occasions.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for an honorable characterization of service.  An upgrade to honorable would be inappropriate.

The Applicant’s discharge characterization accurately reflects his service to his country.  The discharge was proper and equitable.  Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question.  No such error or inequity is evident during the Applicant’s enlistment.  Additionally, 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 the service.  Relief not warranted.

The Applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge.  Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  Paragraph 6210, Misconduct The Marine Corps Separation and Retirement Manual, (MCO P1900.16D), effective 27 Jun 89 until 17 Aug 95. 

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; and Article 134, wrongful jumping from ship.

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