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

 , ex-Pvt, USMC
Docket No. MD03-01412

Applicant’s Request

The application for discharge review was received on 20030825.  The Applicant requests the characterization of service received at the time of discharge be changed to  general/under honorable conditions.  The Applicant requests a documentary record  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 20040526.  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: UNDER OTHER THAN HONORABLE CONDITIONS/INVOL DIS (BOARD WAIVED) (PATTERN OF MISCONDUCT), authority: MARCORSEPMAN Par. 6210.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “I am requesting an upgrade in discharge from an OTH to a General Under Honorable Conditions.

For nearly 10 years since my discharge, I have been diagnosed by a licensed psychiatrist as having a personality disorder.  Intermittent Explosive Disorder, which can be maintained under control by medication.  I was also diagnosed in approximately 1978 as Moderately Hyperactive.  This diagnosis was made by Duke University Medical Center after a thorough physical and psychological evaluation.

My request for the upgrade is based on the strong possibility that my mental instability, which was not diagnosed prior to my discharge, may have been responsible for my disrespect to a non-commissioned officer.”

Documentation

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

Letter from HQMC to Senator R_
Letter from J_ B_, MD

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		920424 - 921026	COG

Period of Service Under Review:

Date of Enlistment:  921027		Date of Discharge:  950428

Length of Service (years, months, days):

	Active:    02  06  02  (Does not exclude lost time)
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  38

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.2 (9)			Conduct:  4.0 (9)

Military Decorations:  None

Unit/Campaign/Service Awards:  MM (2), LOA (2), NDSM

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) (PATTERN OF MISCONDUCT), authority:  MARCORSEPMAN Par. 6210.3.

Chronological Listing of Significant Service Events:

930917:	Counseled for deficiencies in performance and conduct.  [Pattern of being late for work and lack of attention to duty.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

940729:	Counseled for deficiencies in performance and conduct.  [Involvement with civilian authorities which resulted in a conviction for contributing to the delinquency of a minor on 940504 and the second allegation from your wife for spousal abuse.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

940818:	NJP for violation of UCMJ, Article 86 (2 specs):
Specification 1: Failed to go to place of duty at 0600, 940810.
Specification 2: Failed to go to place of duty at 0600, 940817.
Awarded forfeiture of $466.00 per month for 2 months, restriction and extra duties for 45 days, reduction to E-2 (forfeiture and reduction suspended for 6 months).  Not appealed.

940929:	Vacate suspended reduction from NJP of 940818.

941020:	Vacate suspended forfeiture from NJP of 940818.

941130:	Summary Court-Martial.
Charge I: Violation of UCMJ, Article 86: Failed to go to place of duty at 1300, 940912.
Charge II: Violation of UCMJ, Article 89: Making disgruntled facial expressions toward Capt. S_.
Charge III: Violation of UCMJ, Article 90: Disobeyed lawful order of Capt. S_.
Charge IV: Violation of UCMJ, Article 91: Disrespectful in language and deportment to Cpl. P_, Jr., and having a tantrum.
Charge V: Violation of UCMJ, Article 121: Steal phone services of a value of $33.00 between 940919 to 941003.
Finding: To Charges I-III- Not Guilty; to Charges IV-V- Guilty.
Sentence: Forfeiture of $555.00, confinement for 30 days, reduction to E-1.  
941202: CA action. Approved and ordered executed.

941227:	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 two counseling entries, one NJP, one summary court-martial, and one civilian conviction for sexual intercourse with a 12 year-old child and another person.

941227:	Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

950104:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and due to minor disciplinary infractions.  Applicant has continued to demonstrate a total disregard for rules and regulations.

950301:	Applicant voluntarily waived request for an Administrative Discharge Board.

950411:	SJA review determined the case sufficient in law and fact.

950421:	GCMCA [Commander, Marine Corps Air Bases, Western Area] directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19950428 under other than honorable conditions for misconduct due to a pattern of misconduct (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.  Administrative separation for misconduct takes precedence over separation for possible 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 sailor.  The Applicant was the subject of one nonjudicial punishment, one summary court-martial and two adverse counseling entries.  While the Applicant may feel that his diagnosis of pre-service hyperactivity and post-service personality disorder were factors that contributed to his actions, the record clearly reflects his disregard for the requirements of military discipline and demonstrated that he was unfit for further service.  The evidence of record and documentation provided by the Applicant does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.

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, of 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 for more than 30 days; Article 91, disrespect to a NCO; and Article 92, disobey a lawful order.

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