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

ex-Pvt, USMC
Docket No. MD03-01093

Applicant’s Request

The application for discharge review was received on 20030605.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record review.  The Applicant did not list any representative on the DD Form 293.  Subsequent to the application, the Applicant obtained representation from the Disabled American Veterans.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040608.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain: GENERAL (UNDER HONORABLE CONDITIONS)/PERSONALITY DISORDER, authority: MARCORSEPMAN Par. 6203.3

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “The discharge is improper, because I followed the instructions from my company instructor on how to obtain a General discharge.  I did not diserve to be hit or beaten while going through training.  I wrote a memo on the incident which happened to me in infantry training and no action was taken.

(See attachment for Greater details)

While in the Marine Corps, the instructors are given specific instructions not to make physical contact with the marines or recruits in training.  Several instructors beat me to the extent to where I had to make a formal complaint.  I started Marine Corps training on March 3, 1998 and graduated on May 22, 1998.  I was in platoon 1063.  My Staff Sergeants name was D_ H_, the senior drill instructor was sergeant E_ G_ Z_, and the other two instructors were drill instructor Sergeant L_ B_, and drill instructor Sergeant 0_ N_.
These are some incidents, which happened to me while I was going through boot camp.  When revile was sounded.  I was trying to put my socks on as fast as I could but the senior drill instructor Sgt. Z_ ran over and hit me and recruit K_ Y_ as hard as he could in the chest and knocked us both over and said, "Move Faster!!!"  Another incident is when a recruit who’s bunk was next to mine, recruit F_, M_ did not get out of his bunk fast enough so the senior drill instructor Sgt. Z_ ran over to his bunk and grabbed his shirt and pulled recruit F_ out of his bunk and pushed him back into my rack and back into his own rack, while recruit F_ pleaded to Sgt. Z_ saying, “he was sorry”, and began to cry.  Another incident happened when Drill instructor Sgt. E_ B_ in platoon 1062 became mad at me for some reason while the platoons were doing swim training, when Sgt. E_ B_ ordered or told recruit W_, D_ R_, who was in my platoon 1063, to hit me in the back of the head about three times repeatedly.  Another is When my platoon 1063 was doing marching drills, I missed a drill step and the senior drill instructor Sgt. Z_ walked over to me and whispered, “get it right” and hit me with the rim of his smoky hat right into my bridge of my nose as hard as he could.  I graduated from boot camp believing the instructors would not strike me again, but I was wrong.
    I am going to explain what happened to me while I was going through (ITB) Infantry Training Battalion, in Camp Penalton, California.  I want through training in Alpha Company.  In the third week of training, I got poison oak so bad on my left leg.  The leg stiffened up at the joint so I could not walk.  The Navy hospital gave me crutches, because I could not walk.  Because of this incident with poison oak, I was placed in Charlie Company.  That’s when I met my instructor for my squad, a Hispanic male, approximately 22 years old, (I forgot his name).  My instructor had a problem with this marine in my squad, I remembered the instructor (Hispanic male 22yrs old) made this marine get into a push up position and put his boot on the back of this marines neck and pushed his face into the dirt.  A couple of days later, the platoon did some fire team rushes, and after the fire team rushes our instructor the Hispanic male 22yrs old, took our squad of 8 and ran us up hill for an exercise at the top.  On the way up I felt very fatigued (I was not feeling good that day either), I was not moving fast enough for the instructor and he told me I was not going fast enough and advised me he was going to send me back to the beginning of training.  I ran up the hill the rest of the way and everything was fine.  Now my squad was finished with the training on the top of the hill and we picked up our weapons and started jogging down hill, when my instructor the Hispanic male, took away my weapon and hit me with my machine gun as hard as he could right into my back and said, “MOVE IT!!  Our squad jogged back to the barracks.  I became frustrated and placed my Marine Corps identification card and my dog tags inside my locker and went home.  I went back I believe 7 days later to Camp Penalton.  Another instructor (A Back Male.  I cant remember his name, who was a instructor in Charlie Company), advised me on how I could get out of the Marine Corps with a general discharge, and I followed his instructions.  I wrote out a statement on what occurred with the instructor in Charlie Company. the 22yr old Hispanic male, who hit me in my hack with my own machine gun.  No action was taken against the 22year old Hispanic male instructor.
I am going to College right now to obtain a degree in Criminal Justice.  I want to become a Police Officer, but my General discharge from the military is restricting my life’s goal to become a Police Officer to help people.  If I have to go back into any branch of military service to get an Honorable discharge I will.  I will give the military one hundred percent of my effort.  I did not sign up for the military to get beaten and hit.  I wanted to become a part of a team, to become close brothers with other marines.  If I get another chance to do so I will, but I got a number 4 for re-enlisting.  I have no criminal background what so ever.  So I am asking please look into my General discharge (Under Honorable conditions).  I will be willing to go the full distance on changing it.  Thank you very much.”

Additional issues submitted by Applicant’s representative (Disabled American Veterans):

2.  “Dear Chairperson:

After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of evidence assembled for review, we continue to note the contention of the appellant in his request for a discharge upgrade of his current General Under Honorable Conditions discharge to that of Honorable.

The FSM served on active service from February 24, 1998 to October 28, 1998 at which time he was discharged due to Personality Disorder.

The FSM contends the current discharge is improper because of the repeated abuse he suffered during training that cause him to go absent without leave for eleven days.  The same circumstances related to training are also believed to be responsible for the aggravation or cause of the personality disorder, which became the narrative reason for discharge.

This creates a need for a review of the application of the standard, for the Board to determine that the Applicant’s discharge was improper.  The Board will determine which reason for discharge should have been assigned based upon the facts and circumstances before the Board, including the service regulations governing the reasons for discharge at that time, to determine whether relief is warranted.  See, SECNAVIST 5420.174 (c), Par. (f) (1).

As the representative, we ask that consideration be given to equitable relief, as this is a matter that involves a determination whether a discharge should be changed under the equity standards, to include any issue upon which the Applicant submits to the Board’s discretionary authority, under SECNAVIST 5420.174C.

Under the premises of equitable relief, we believe the Board can upgrade the current discharge to reflect an Honorable Conditions discharge, as the regulation do note that the issue of a personality disorder can still result in an Honorable discharge from military service depending on the level of service.  This FSM attempted to give the military one-hundred percent and was beaten and abused for it.  If the non-touch policy had been adhered too, by the drill instructors, the FSM would never had been discharged.

An elevation of the current discharge to honorable would allow equitable relief for the FSM, and enable him to provide protection and service to his community, by pursuit of law enforcement.

We ask for the Board’s careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision.  These issues do not supersede any issues previously submitted by the Applicant.

Respectfully,”

Documentation

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

Applicant’s DD Form 214
Statement from Applicant
E-mail, dated February 17, 2000
Texas Academic Skills Program examinee score report, dated November 19, 2002 and April 14, 2003
North Central Texas College Spring 2003 grades
Criminal history check, dated June 17, 2003
Denton Urology professional service bill, dated June 6, 2003

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		980209 - 980223	COG

Period of Service Under Review:

Date of Enlistment:  980224		Date of Discharge:  981028

Length of Service (years, months, days):

	Active:    00  08  05	Does not exclude lost time
	Inactive:  None

Age at Entry:  22			Years Contracted:  4

Education Level:  12			AFQT:  45

Highest Rank:  Pvt

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.1 (2)			Conduct:  4.1 (2)

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  11

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

GENERAL (UNDER HONORABLE CONDITIONS)/PERSONALITY DISORDER, authority:  MARCORSEPMAN Par. 6203.3.

Chronological Listing of Significant Service Events:

980831:	Discharged from 5 days inpatient psychiatric treatment at NH CAMPEN. Medical evaluation by a military psychiatrist concluded that the Applicant’s personality disorder was so severe that his ability to function effectively in the military environment was significantly impaired.  Recommended expeditious administrative separation.

	AXIS I:  Occupational problem.
AXIS II:  Avoidant personality disorder.

980902:	NJP for violation of UCMJ, Article 86:
Specification: Unauthorized absence from 0901, 980815 to 1330, 980825 (11 days/surrendered).
Awarded forfeiture of $216.00 per month for 1 month, restriction and extra duties for 14 days.  Not appealed.

980904:	Counseled for deficiencies in performance and conduct.  [Diagnosed with a personality disorder which hinders your ability to continue training.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

980925:	Applicant notified of intended recommendation for discharge under honorable conditions (general) for the convenience of the government due to a personality disorder, based upon a diagnosed personality disorder as evidenced by psychiatric evaluation.

980925:	Applicant advised of rights and having elected not to consult 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.

980925:	Commanding Officer recommended discharge under honorable conditions (general) for the convenience of the government due to a personality disorder, based upon a diagnosed personality disorder as evidenced by psychological evaluation.  The factual basis for this recommendation was Applicant’s demonstrated poor coping and problem solving skills, suicidal ideations/attempt, and inability to adapt to military life.  He was subsequently diagnosed by medical authorities as suffering from an occupational problem.  Through his actions and inability to adapt to military life, Applicant has demonstrated that he is incapable of continued service in the Marine Corps.  

981008:	GCMCA [Commanding General, Marine Corps Base, Camp Pendleton, CA] directed the Applicant's discharge under honorable conditions (general) for convenience of the government due to a personality disorder.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19981028 with a general (under honorable conditions) for convenience of the government due to a personality disorder (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).

Issues 1 and 2.  A characterization of service of under honorable conditions (general) 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 Applicant’s service was marred by award of nonjudicial punishment (NJP) on one occasion and an adverse counseling entry on another occasion.  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.  The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  An upgrade to honorable is inappropriate.  Relief denied.

Concerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces.  Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment.  A request for waiver is normally done only during the processing of a formal application for enlistment through a recruiter.  

The Applicant’s discharge characterization accurately reflects his service to his country.  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, to enhance employment opportunities, or for 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 6203, CONVENIENCE OF THE GOVERNMENT, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 18 Aug 95 until Present.

B.  Table 6-1, Guide for Characterization of Service, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 18 Aug 95 until Present.

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