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

ex-PFC, USMC 
Docket No. MD03-01255

Applicant’s Request

The application for discharge review was received on 20030718.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record discharge review.  The Applicant listed the American Legion as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040812.  After a thorough review of the available 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: UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MARCORSEPMAN Par. 6210.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

Issue 1.  “it seems that when my commander found out that I was disabled I could do no right, I was even placed on details while being on profiles due to my knee condition.  I was considered an Outstanding Marine up until the time I injured my knee, I was even given a letter of appreciation even the week before my discharge.”

On the DD Form 293, the Applicant marked the box indicating additional issues were attached to the Application, none were found.

Additional issues submitted by Applicant’s counsel/representative (AMERICAN LEGION):

Issue 2.  “Equity Issue:  Based on our review of evidentiary record and on behalf of this former member, we request that the Board consider provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application. 
_______________________________________________________________________

In accordance with 32 C.F.R., section 724.166, and SECNAVINST 5420.174C, enclosure (1), paragraph 1.16, The American Legion submits to the Naval Discharge Review Board (NDRB or Board) the above issue, and following statement in supplement to this Applicant’s petition. 

Review of the service record reveals that this former member maintained satisfactory overall PRO/CON markings of 4.4/4.3 and earned the NDSM, NUR, MRB and SPB.  He was awarded NJP on 011012 for VUCMJ, Arts. 92, 134.  On 021008, an informal Physical Evaluation Board found him unfit due to a right knee anterior cruciate ligament tear and lateral compartment bone bruising evaluated as 10% disabling.  He was awarded NJP on 021007 for VUCMJ, Arts. 108, 134.  Following due process notifications, he was discharged Under Other Than Honorable Conditions due to misconduct as authorized by MARCORSEPMAN, Par. 6210.3.

Essentially, as noted on DD Form 293, this Applicant is requesting that his discharge be upgraded because his command was prejudiced and abusive of him because of his knee injuries and issued him an unduly harsh discharge.  He has not submitted any additional documentation for the Board’s consideration beyond copies of his service record.

The American Legion’s express purpose in providing this statement, and any other submittals or evidence filed, is to assist this Applicant in the clarification and resolution of the impropriety or inequity raised.  To that end, we rest assured that the NDRB’s final decision will reflect sound equitable principles consistent in law, regulation, policy and discretion as promulgated by title 10 U.S.C., section 1553, and set forth in 32 C.F.R., part 724, and SECNAVINST 5420.174C, enclosure (1).  This case is now respectfully submitted for deliberation and disposition.”

Documentation

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

Facsimile cover sheet to Congressman C_ J_, dtd 030605
Meritorious Promotion ICO [Applicant], dtd 010210
PEB documentation [7 pages]
Commanding Officer’s ltr, dtd 020731
Medical Board msg dtd 020722 [2 pages]
Request for non-medical assessment 020722 [2 pages]
Medical Board msg dtd 020722
Limited Duty Medical Board Report

On the DD Form 293, the Applicant indicated a “Two page letter from myself” was attached to the Application, none was found.

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		000226 - 000326	COG

Period of Service Under Review:

Date of Enlistment:  000327		Date of Discharge:  030207

Length of Service (years, months, days):

	Active:    02  10  11
	Inactive:  None

Age at Entry:  21			Years Contracted:  4

Education Level:  12			AFQT:  NMF*

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages:

Proficiency:  4.4			Conduct:  4.3 
[Extracted from CO’s letter dated 021106]

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, NUC

Days of Unauthorized Absence:  None

*  No marks found

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  MARCORSEPMAN Par. 6210.3.

Chronological Listing of Significant Service Events:

010330:	Counseled for deficiencies in performance and conduct.  [Poor judgment by disobeying Station Order P111.00.1.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

010621:	Counseled for deficiencies in performance and conduct.  [Marine’s alcohol-related incident on 9 June 2001.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

011012:	NJP for violation of UCMJ, Article 92, disobey an order from commanding officer.  Article 134, display drunk and disorderly conduct.  
Awarded forfeiture of $584.00 per month for 2 months, reduced to E-2.  Not appealed.

020424:	SF 600 entry: [Pnt states he feels comfortable discharging self from physical therapy.  Pnt discharged from physical therapy upon pnt request.]

020719	Report of medical board: [Patient cannot perform his duties in a Full Duty Status.  It is our opinion that the maximal benefits of outpatient management have been achieved.  The patient has recovered well from his left knee, however, his rehabilitation is limited at this time secondary to hi right knee pathology.  The patient does indeed have a new injury on the right knee in the form of an ACL tear and bone bruise laterally.  We have offered PFC F_ an ACL reconstruction on the right knee.  However, he has declined any further surgical intervention…. We do not feel, however, that he will be able to successfully complete his enlistment with an ACL deficient right knee.]

020731:	Commanding Officer’s comments: [This injury, in my opinion, is repairable and he could be in a full duty status in a relatively short period of time, if he chooses to have surgery performed…. LCpl Forbes has elected no to have the surgery and is pursuing a medical discharge.]

021005:	Counseled for deficiencies in performance and conduct.  [Violation of Article 92, Dereliction in the performance of duties, Violation Article 134, Disorderly Conduct.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

021007:	NJP for violation of UCMJ, Article 108, destruction of military property.  Article 134, disorderly conduct, drunkenness.  
Awarded forfeiture of $619.00 per month for 2 months, restriction and extra duties for 45 days, reduced to E-2.  Not appealed.

021011:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by four 6105 counseling entries and your two Non Judicial Punishments.

021015:	Counseled for deficiencies in performance and conduct.  [Violation Article 108, Destruction of Military Property, Article 134, Disorderly Conduct, Drunkenness.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

021015:	Applicant advised of rights and having elected not to consult 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.

021017:	Applicant accepts Preliminary Findings of PEB [Unfit for Continued Naval Service, rated at 10%].

021108:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.  The factual basis for this recommendation was four page 11’s for failing to meet basic Marine Corps standards.  He also has two Non-judicial punishment’s.  Commanding officer’s comments: [Private First Class F_ was given proper guidance and counseling from the Substance Abuse Counseling Center for his alcohol related incidents, but he ignores direct and replies that he does not have a problem and refuses treatment] 

030103:	SJA review determined the case sufficient in law and fact.

Complete discharge package not available in service record book.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030207 under other than honorable conditions for misconduct due to a pattern of misconduct (A and B).  In the absence of a complete discharge package, the Board presumed regularity in the conduct of governmental affairs (C).  After a thorough review of the available 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.  When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable.  An Under Other Than Honorable Conditions discharge 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 two nonjudicial punishment proceedings for violations of Article 92 and Article 134 of the UCMJ.  In addition, the Applicant was counseled four times for his deficiencies in performance and conduct.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

The Applicant contends “it seems that when my commander found out that I was disabled I could do no right” and that “I was considered an outstanding Marine up until the time I injured my knee.  The Applicant’s first counseling for deficiencies in performance and conduct was in March 2001.  His second counseling for deficiencies was in June 2001.  The Applicant did not undergo surgery for his first injury until March 2002.  While he may feel that his medical problems were the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service.  The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

Issue 2.  The Applicant's other than honorable discharge was proper and equitable.  The NDRB, under its responsibility to examine the propriety and equity of an Applicant's discharge, will change the reason for discharge if such a change is warranted.  There is no evidence of impropriety, inequity or procedural irregularities in the Applicant's discharge.  The Applicant's misconduct is clearly documented.  He acknowledged and waived his rights to administrative review.  The Applicant was afforded the appropriate due process during the processing of his case.  An upgrade of the Applicant's discharge to an honorable characterization is not warranted.  Relief denied.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge.  The Applicant can provide documentation to support any claims of post-service accomplishments or any other evidence related to his discharge at that time.  Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  Paragraph 6210, MISCONDUCT, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 01 Sep 2001 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 [e.g., 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