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

 ex-PFC, USMC
Docket No. MD05-00616

Applicant’s Request

The application for discharge review was received on 20050223.  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 did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050620.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, an impropriety in the characterization of the Applicant’s service was discovered.  The Board’s vote was four to one that the character and reason of the discharge shall change to: GENERAL (UNDER HONORABLE CONDITIONS)/ SECRETARIAL AUTHORITY, authority: MARCORSEPMAN Par. 6214 with separation code of JFF1.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “To whom it may concern, my name is R_ K.  Y_ (Applicant) I feel that my upgrade should be granted for the reason that at the time I was discharged from the service I had personal issues that I did not know how to cope with, one of those issues was the death of my child in April of 1995, and the death of my grandfather in may of 1999.  I married a woman that I thought had a my child in may of 1999 a year, I found out that the child was not mines in July 1999, a year after she was born furthermore I did not get any support from my wife while I was trying to cope with these issues, and she would tell my commander a lot of things that did not happen.

        I had no one close to me at all to try to help me, I did not trust my commander after they told me that they was going to get me closer to home to take care of my ill grandfather I never heard anything else about it until I got a red cross message six months later.  So I did not trust anyone in my command to help me through my hardship, at this time its five years later I have not been in any conflicts, I work as a counselor in a high security placement center for troubled youth.

        I have been employee of the month two times and I have been promoted to a new position in the company as a shift coordinator, this letter here should let you that I have progressed and at that time I had personal problems that I did not know how to handle and I’m asking you to make a decision to upgrade my discharge to honorable, And I have dedicate my life to helping others and making my community better and helping troubled youth I would like to thank you for taking the time to review my discharge.

Thank you
R_ K. Y_ (Applicant)”

Documentation

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

Character reference from M_ G_, undated
Character reference from C_ P. M_, dated January 10, 2004
Applicant’s DD Form 214 (Member copy 1 and 4)

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)			970711 - 970715	COG

Period of Service Under Review:

Date of Enlistment:  970716		Date of Discharge:  000314

Length of Service (years, months, days):

	Active:    02  07  29
	Inactive:  None

Age at Entry:  22			Years Contracted:  4

Education Level:  12+		AFQT:  38

Highest Rank:  PFC			MOS:  0811

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.8 (8)			Conduct:  3.7 (8)

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR, MM, LoA, RSB

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  MARCORSEPMAN Par. 6210.2.

Chronological Listing of Significant Service Events:

980611:	Applicant informed eligible but not recommended for promotion for the month of July 1998 due to not qualifying with his T/O weapon during this reporting period.

990209:	Counseled for deficiencies in performance and conduct.  [Unauthorized absence on 990204, 981119, and 980831.  Applicant has a history of being late for formation.  Applicant was counseled on 980831, 981119 and again on 990204.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

990302:	Counseled for deficiencies in performance and conduct.  [Disobeying a lawful order from a NCO, DNCO, and the Battalion SDO.  On 990228 at approximately 0300 Applicant was ordered to go to his room repeatedly by an NCO, the Battery DNCO and the Battalion SDO due to the fact he was drunk.  Applicant was so uncooperative PMO had to be called in.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

000103:	Pearl Harbor (BMC Makalapa) Mental Health Clinic:  Diagnosis:  AXIS I: Occupational problem.  Bereavement.  AXIS II: Antisocial personality disorder.  RECOMMENDATIONS:  Although the member's threats of suicide pertain only in the condition that he is retained in the USMC, this member displays a strong history of impulsive behaviors which could prove to be fatal if he decided to act upon his suicidal threats.  This member is not suitable for active-duty in the USMC due to a Personality Disorder and ongoing DANGER TO SELF OR OTHERS if retained in the USMC.  The member is not mentally ill and is fully responsible for his behavior....Therefore, it is STRONGLY recommended that he be processed by his command for an EXPEDITIOUS administrative separation...by reason of unsuitability without recourse to further psychiatric evaluations, hospitalization or medical board.

000118:	Mental Status Evaluation, Mental Health Clinic, Tripler Army Medical Center, Hawaii:  Diagnosis:  Personality disorder, not otherwise specified, with antisocial traits.

000124:	Counseled for deficiencies in performance and conduct.  [Two blotter incidents the Applicant was involved with on 991002, where he was the suspect in a reported domestic assault case and a DUI case in which the Applicant's BAC was found to be .248%.]  Necessary corrective actions explained, sources of assistance provided, and disciplinary and discharge warning issued.

000124:	Counseled for deficiencies in performance and conduct.  [The blotter incident the Applicant was involved with on 991225, where he was apprehended for DUI (refusal), driving on a suspended license, assault on an MP, communicating a threat, drunk and disorderly, and failure to comply.]  Necessary corrective actions explained, sources of assistance provided, and disciplinary and discharge warning issued.

000124:	Counseled for deficiencies in performance and conduct.  [Applicant diagnosed with a personality disorder with suicidal and/or homicidal ideations which make him a risk to himself and others.]  Necessary corrective actions explained, sources of assistance provided, and disciplinary and discharge warning issued.

000125:	Applicant signed Advisement of VA Rights stating that VA Drug and Alcohol Rehabilitation is available for Marine who need and desire treatment, that he was evaluated by a medical officer and diagnosed as being either a drug or alcohol dependent/abuser, and that he was provided with the address and phone number of the VA facility nearest his home of record which could provide the appropriate form of treatment.  Applicant elected not to request VA treatment in conjunction with his discharge.

000216:	Applicant notified of intended recommendation for discharge by reasons of having a personality disorder with antisocial traits and his numerous violations of the UCMJ.  Applicant advised that the least favorable characterization of service that he may receive is under other than honorable conditions.

000216:	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.

000216:	Commanding Officer, Headquarters Company, 3d Marine Regiment (Rein) recommended discharge under other than honorable conditions by reasons of convenience of the government (personality disorder) and misconduct due to minor disciplinary infractions.  The factual basis for this recommendation was Applicant’s diagnosis of having a personality disorder with antisocial traits and numerous violations of the UCMJ, to include unauthorized absence (three offenses), disobeying a lawful order, domestic assault, driving under the influence (two offenses), driving on a suspended license, assault on a military police, communicating a threat, drunk and disorderly, and failure to comply.  

000228:	SJA review determined the case sufficient in law and fact.

000301:	GCMCA (Commanding General, Marine Corps Base Hawaii) directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20000314 under other than honorable conditions for misconduct due to minor disciplinary infractions (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 not proper (D and E).

Issue 1:  The Applicant contends that the disciplinary problems he encountered during his period of service were the result of personal problems, and for this, he was dealt with unfairly.  The NDRB sympathizes with the Applicant's personal losses and recognizes that serving in the Marine Corps is challenging.  Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country.  The hardships and challenges of military life, however, do not excuse a Marine from accountability for his actions.  There is no evidence in the record to suggest that the Applicant was not responsible for his misconduct or that he should not be held accountable for his actions.  Further, there is no evidence in the record that the Applicant was not treated equitably by anyone involved in the discharge process.  The record shows that the Applicant was advised of the rights afforded to him as part of the administrative separation process and did waive his right to consult with legal counsel certified under Article 27B of the UCMJ as well as his right to present his case before an administrative discharge board.  The NDRB found that the Applicant was treated, and that his service was characterized, equitably.  Relief on this basis is denied.

The Applicant also states that, since leaving military service, he has dedicated his life to helping troubled youth and making his community better.  The Board commends the Applicant for this effort but advises him that there is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the Marine Corps.  The NDRB is, however, authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  The Applicant has provided two character references but this is not sufficient for the Board to consider relief based on post-service conduct.  Relief on this basis is denied.

The NDRB did find an impropriety in the Applicant’s separation processing.  The record indicates that the Applicant received a disciplinary and discharge warning on 20000124 for being diagnosed with a personality disorder.  Separation was then recommended by the Commanding Officer, Headquarters Company, 3d Marine Regiment (Rein) 23 days later, on 20000216.  The separation authority subsequently directed discharge on 20000301 by reason of misconduct due to minor disciplinary infractions.  The Board, confident that a full administrative discharge package was contained in the records under review, found that the Applicant did not commit any further acts of misconduct after 20000124 and, therefore, did not violate the discharge warning given to him on that date.  As such, the Applicant's processing for misconduct due to minor disciplinary infractions was improper.  Partial relief on the basis of propriety is granted.

In granting partial relief, the NDRB considered the Applicant's misconduct, which is clearly documented by five formal counseling entries for deficiencies in performance and conduct.  These deficiencies include unauthorized absences on three occasions, disobeying lawful orders on two occasions, domestic assault, driving under the influence of alcohol on two occasions, driving on a suspended license, assaulting a military policeman, and communicating a threat.  While domestic violence was never substantiated and the Applicant's command neither charged him nor processed him (judicially or nonjudicially) for UA, DUI, assault, or other offenses, his misconduct was reflected in his average conduct marking which falls below the 4.0 required to award a Marine an honorable characterization (F).  As such, the Board upgrades the Applicant's characterization of service to general (under honorable conditions).

In cases where no other reason for separation set forth in the Marine Corps Separation and Retirement Manual is appropriate, but where separation of a member is considered to be in the best interest of the service, the Secretary of the Navy has the authority to direct the separation of any member prior to the expiration of their term of service.  The Applicant’s commanding officer determined the Applicant had no potential for further service in the Marine Corps.  The basis for his determination is clearly documented in the service record.  There is no other narrative reason for separation which accurately describes the reason the Applicant was separated.  Therefore, the NDRB determined that the reason for the Applicant’s discharge shall change to Secretarial Authority.

Pertinent Regulation/Law (at time of discharge)

A.  Paragraph 6210, MISCONDUCT, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 31 Jan 97 until 31 Aug 2001. 

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 128 Assault upon a military policeman.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

E.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

F.  Marine Corps Order P1900.16F of 30 May 2001, Marine Corps Separation and Retirement Manual (MARCORSEPMAN), Chapter 1, Para 1004, Characterization of Service.

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 “http://Boards.law.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:

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