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

 ex-PVT, USMC
Docket No. MD05-00667

Applicant’s Request

The application for discharge review was received on 20050302.  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 discharge review.  The Applicant listed the Veterans Service Office as his representative on the DD Form 293.  In the acknowledgement letter the Applicant was informed that he was approaching the 15 year point for review by this Board and was encouraged to attend a personal appearance hearing in the Washington, DC area.  The Applicant did not respond.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050629.  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/Misconduct – Pattern of misconduct (administrative discharge board required but waived), authority: MARCORSEPMAN Par. 6210.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated:

1.  “I believe the records to be in error in the following particulars:

I served in the US Marine Corps from 11/28/88 to 11/23/90 as a Military Policeman/Physical Security Guard.  Upon discharge I was given an Other Than Honorable Conditions discharge by reason of Pattern of Misconduct.  I do not feel my discharge was equitable due to medical problems exacerbated by personal problems.

I was diagnosed as a bipolar/depressive in 2003.  I believe there is evidence in my service medical record indicating that I already suffered from symptoms of this condition while I was still on active duty.  The formal diagnosis simply had not yet been made.  Had it been, I believe I would have been discharged at least Under Honorable Conditions.

The misconduct problems on active duty began when my wife and I separated.  I began drinking, which led to minor infractions of misconduct.  I tried to get hold of my wife to find out of there was any way we could get back together.  My father-in-law informed me that my wife had died in a car crash, but I had not been notified at the time.  I have never been able to find out it this was really true.  At that time, though, I went through a complete breakdown which required medical treatment.

Since my discharge from the Marines I have worked in cable telecommunications.  I have been hospitalized a number of times (approx 6-7) in civilian medical centers.  The worst periods were when I would go into manic episodes, accompanied by heavy drinking.

My most recent medical treatment has been through the VA Healthcare System at Tomah VAMC, Tomah, WI.  I have been an in-patient there twice due to my mental/emotional problems.

In summary, because of my developing mental problems, added to my personal problems, I was not able to live up to the standards of a Marine.  I believe this should be taken into consideration when looking at my character of discharge.  As such, I request a review of my military records and ask that my discharge be changed to General Under Honorable Conditions.  If you would like any of my civilian medical records, please let me know.  Thank you very much.

The statement on this form are true and correct to the best of my knowledge and belief.”    

Documentation

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

None were submitted by the Applicant

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		841031 - 881128	HON
	Inactive: USMCR(J)		840310 - 841030	COG

Period of Service Under Review:

Date of Enlistment:  881129		Date of Discharge:  901123

Length of Service (years, months, days):

	Active:    01  11  25
	Inactive:  None

Age at Entry:  23			Years Contracted:  4

Education Level:  12			AFQT:  62

Highest Rank:  CPL			MOS:  5814/5811

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.3 (5)			Conduct:  3.1 (5)

Military Decorations:  None

Unit/Campaign/Service Awards:  M16 Expert Badge(2), 9mm Marksman Badge, GCM, SSDR, MUC, LOA(3), MM, COA

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – Pattern of misconduct (administrative discharge board required but waived), authority:  MARCORSEPMAN Par. 6210.3.

Chronological Listing of Significant Service Events:

891129:	Reenlisted at Scty Bn MCCDC Quantico, VA for 4 years.

891227:	Counseled for deficiencies in performance and conduct.  [Alcohol related incident on 891209 specifically being charged with DWI (BAC .27); exceeding speed limit (37 MPH in a 25 MPH zone) and disregarding signal to stop by MP’s.]   Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

891229:	NJP for violation of UCMJ, Article 86: UA from 0730-0800, 891227.
Awarded forfeiture of $50.00 pay per month for 1 month, restriction to the limits for a period of 60 days (50 days suspended for 6 months).  No indication of appeal in the record.

900108:	Applicant admitted to Level III Alcohol Treatment at NARC, San Diego, CA.  [Extracted from CO’s letter of 901102]

900212:	Applicant terminated from Level III as a failure.  [Extracted from CO’s letter of 901102]

900216:	Suspension of NJP imposed and suspended on 891229 for a period of 6 months is hereby vacated and the punishment is ordered executed.

900223:	Counseled for deficiencies in performance and conduct.  [Your failure of Level III alcohol treatment.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

900526:	Applicant apprehended for driving while his license was revoked for suspected DWI.  Applicant refused to submit to blood or breathalyzer.  [Extracted from CO’s letter of 901102]

900604:	Applicant injured himself while driving in Lunga Reservoir.  He was intoxicated at the time.  [Extracted from CO’s letter of 901102]

900624:	Applicant departed the base without authority and was involved in an automobile accident. [Extracted from CO’s letter of 901102]
 
900731:	Special Court-Martial.
	Charge I:  violation of the UCMJ, Article 89 (2 Specifications):
	Specification 1: Did at MCB, MCCDC, Quantico, VA., on or about 900526, behave himself with disrespect toward Captain M___ S___, U.S. Marine Corps, his superior commissioned officer, then know by Corporal O___ to be his superior commissioned officer, by saying to Staff Sergeant W__ M. Z___, U.S. Marine Corps, “That black nigger bastard Captain S___ has finally got me where he wants me”, or words to that effect.   
	Specification 2: Did at MCB, MCCDC, Quantico, VA., on or about 900527, behave himself with disrespect toward Chief Warrant Officer-4 K___ A. M___, U.S. Marine Corps, his superior commissioned officer, then know by Corporal O___ to be his superior commissioned officer, by saying to Staff Sergeant W__ M. Z___, U.S. Marine Corps, “The Warrant Officer in the Criminal Investigation Division is an idiot with a lisp,” or words to that effect.
	Charge II:  violation of the UCMJ, Article 91.
	Specification: Did at Rm 210, Brks 2002, MCB, MCCDC, Quantico, VA, on or about 900526, was disrespectful in language toward to Staff Sergeant W__ M. Z___, U.S. Marine Corps, a staff noncommissioned officer, then known by Corporal O___ to be a superior staff noncommissioned officer, who was then in the execution of his office, by saying to him, “You are a hypocrite, a breaker of the law, an alcoholic and an drunk,” or words to that effect.  
Charge III: violation of the UCMJ, Article 92.  Specification: Did at Rm 210, Brks 2002, MCB, MCCDC, Quantico, VA, on or about 900526, violate a lawful general order, to wit: paragraph 5, MCCDO 1700.4 dated 851216, by wrongfully possessing alcohol in an unauthorized area.  Charge IV: violation of the UCMJ, Article 112.  Specification: Was, at Bldg 2043, SctyBn, MCB, MCCDC, Quantico, VA., on or about 900614, found drunk while on duty as a military policeman.      
	Findings:  to Charge I and specifications 1 and 2 thereunder, guilty.  To Charge II and specification thereunder, guilty.  To Charge III and specification thereunder, guilty.  To Charge IV and the specification there under guilty, excepting the words, ‘as a military policeman.’    
	Sentence:  Forfeiture of $300.00 pay per month for 5 months, confinement for 150 days, reduction to E-1.
	CA 900924:  Sentence approved and ordered executed.
	
901012:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct, specifically a pattern of misconduct.

901019:	Applicant advised of rights and having elected to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

901102:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.  

901114:	SJA review determined the case sufficient in law and fact.

901116:	CG, MCCDC 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 19901123 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.  The Applicant states that his discharge was inequitable because he had medical problems which were exacerbated by personal problems.  The Applicant further states that he was suffering from bipolar/depressive disorder while on active duty, though he was not formally diagnosed until 2003.  While he may feel that his personal and medical problems were the underlying causes 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.

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 counselings, nonjudicial punishment proceedings and a summary court-martial conviction for driving while intoxicated, Level III treatment failure and violations of Articles 86, 91, 92 and 112 of the UCMJ.  The Applicant’s suspended punishment of 19891229 was vacated on 19900216 indicating further misconduct.  Additionally, the Applicant’s violation of Article 112 of the UCMJ is considered the commission of a serious offense.  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. Marine Corps and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no impropriety after a review of Applicant’s case.  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 Naval service.  The NDRB is 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.  Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  As of this time, the Applicant has not provided any documentation for the Board to consider.  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 P1900.16D), 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 112, drunk on duty.

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.

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