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

FOR OFFICIAL USE ONLY

ex-Cpl, USMC
Docket No. MD05-01090

Applicant’s Request

The application for discharge review was received on 20050614.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance discharge review before a traveling panel.  In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) does not travel.  All hearings are held in the Washington National Capital Region.  The NDRB also advised that the Board first conducts a documentary review prior to any personal appearance hearing.  The Applicant did not designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20051206.  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) by reason of convenience of the government due to condition not a disability.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“I am requesting both an upgrade of discharge as well as a return of my original rank of Sgt which was taken in an NJP prior to my separation from the Corps.  I am willing to provide whatever information is requested or required to prove that I was erroneously demoted as retribution by my chain of command for being unwilling to silently suffer the ill effects of the anthrax vaccine.

I was NJP’d in Okinawa Japan for violation of article 86 of the UCMJ.  I had requested a Court Martial as I was in fact at my BN aid station suffering the effects of a migraine.  I had chosen a Court Martial as my chain of command had shown a total lack of concern for my medical condition and had chosen me to be the example of what would happen to those who spoke out on the dangers of the anthrax vaccine.  My command had decided that I was malingering without any evidence or the ability to prove this.
At roughly the same time my wife at the time had required my return to the states for medical reasons.  I was allowed to return once and denied the second Red Cross request due to my Court Martial status.  I was told that if I took an NJP I would be allowed to return home to care for my wife.  As such I requested mast to the Commanding General, (I cannot remember his name) He told me that he would not overturn my commanding officers decision and as such I was forced to take an NJP as opposed to the court martial.  I am certain that had I taken the Court Martial I would not have lost my stripe, I know for a fact that the evidence and witnesses I had would prove beyond any doubt that I was not UA and that I had in fact not violated any Marine Corps Regulations.  My chain of command repeatedly violated my rights during and after this situation to ensure that I was treated as poorly as possible without violating any rule that could not be covered up easily by those in command.”

Applicant’s Remarks:  (Taken from the DD Form 293.)

“I know that it has been several years since this has taken place, I understand it will be difficult to research and even harder to prove or disprove, further I know that the first question anyone reading this is likely to have is “Why now?”

Simply put the stain my chain of command issued against my honor has plagued me since day one.  I have tried many times to correct this problem through various representatives, to no effect, and now choose to try this myself.  If it helps in the decision making process this is not about back pay.  In fact if the board chooses to return my rank to me I will be more than willing to waive any and all pay or benefits that were denied me.  This is not about money, it is about honor and pride, it is about having a rank stolen from me by people who had no right to take it.  I was a Sgt who loved the Corps and did my job above and beyond what was expected of me, to prove this I can provide my 30 or so letters of appreciation and other commendations issued to me prior to becoming ill.  All I want is my rank restored and the NIP expunged from the record.

Thank you for your time and should anything else be needed of me please do not hesitate to request it.”

Documentation

In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:

Letter from Applicant, undtd
Applicant’s DD Form 214 (Member 1 and 4)

PART II - SUMMARY OF SERVICE

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

	Inactive: USMCR (DEP)	19931218 - 19940102	COG
	Active:   USMC 	19940103 - 19980126	HON

Period of Service Under Review:

Date of Enlistment:  19980127		Date of Discharge:  20000310

Length of Service (years, months, days):

Active:    02  01  14
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  24

Years Contracted:  3

Education Level:  12				AFQT:  68

Highest Rank:  Sgt				MOS:  0311

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.0 (3)				Conduct:  3.7 (3)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  Sea Service Deployment Ribbon, National Defense Service Medal, Ltr of Appreciation x3, Meritorious Mast,  Navy and Marine Corps Achievement Medal, Cert of Appreciation x2,  Good Conduct Medal

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

GENERAL (UNDER HONORABLE CONDITIONS)/CONDITION NOT A DISABILITY, authority:  MARCORSEPMAN Par. 6203.2.

Chronological Listing of Significant Service Events:

980127:	Reenlisted this date for a term of 3 years.

981216:	Applicant examined at 3/7 BAS for migraine headaches.

990121:	Applicant examined at 3/7 BAS for migraine headaches.

990212:	Applicant examined at 3/7 BAS for migraine headaches.

990224:	Counseling:  Advised of deficiencies in performance and conduct (For lack of supervision, leadership, and setting the example.  SNM demonstrated a lack of supervision and leadership by not insuring his Marines made it to their appointed place of duty on (990222).  Also SNM failed to properly supervise his Marines during field day in that he was not present to ensure completion of their task to standard.  SNM demonstrated a lack of leadership, attention to detail, by failing his room inspection.  SNM failed to properly execute his Platoon Sergeant order of ensuring that his Squad properly filled out room inventory sheets.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

990312:	Psychiatric Examination. Applicant examined due to severe atypical migraines caused by work related stress.
	Diagnosis:  Axis I:  Occupational problem.  Adjustment disorder and anxious features directly contributing to migraines.  
	Axis II: Consider mild passive depressive features but not considered disorder at this time.
	Axis III: Migraines.
	Recommendations: Psychiatrically fit for full duty but from neurology stance feel a full med board or LIMDU board is indicated.  Suitable for service.  Recommend Command consider lat move to admin work.

990515:	NJP for violation of UCMJ, Article 90:  In that Sgt K_ (Applicant), having knowledge of a lawful command from Capt B_, his Superior Commissioned Officer, then known by the said Sgt K_ (Applicant) to be his Superior Commissioned Officer, to go to all field ops, or words to that effect, did at MCB Camp Schwab, Okinawa, Japan, on or about 17 Feb 1999, willfully disobey the same.
Violation of UCMJ, Article 91: In that Sgt K_ (Applicant), having received a lawful order from SSgt L_ a Staff Non-Commissioned Officer, then know by the said Sgt K_ (Applicant) to be a Staff Non-Commissioned Officer, to get his gear and to go to the field, an order which it was his duty to obey, did, at MCB Camp Schwab, Okinawa, Japan, on or about 17 Feb 1999, willfully disobey the same.
	Award:  Forfeiture of $714 per month for 2 months, restriction and extra duty for 45 days, reduction to E-4.  Forfeiture, restriction and extra duty suspended for 6 months.  Appealed 990517.  Appeal denied 990526.

990526:	Counseling:  Advised of deficiencies in performance and conduct (Termination of UDP for humanitarian reasons affects your worldwide deployability.  Your spouse’s medical conditions that warrant early return from this deployment are long term and require efforts to provide a support structure for spouse in Applicant’s absence.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

990624:	Naval Hospital 29 Palms, CA.  Psychiatric examination conducted.  Applicant having headaches exacerbated by stress.  Per original recommendations, he was instructed to go to FSC for stress management and get prescription for Zoloft.

990722:	Counseling:  Advised of deficiencies in performance and conduct (Failure to properly check out with chain of command.  Failure to keep chain of command informed of whereabouts and of medical status.  Attempting to undermine chain of command by secretly tape recording conversations and counseling without everyone present being informed they were being recorded.), necessary corrective actions explained, disciplinary and discharge warning issued.  Applicants choose to make a statement.

990803:	Neurology Clinic, Naval Medical Center, San Diego, CA, Report of Medical Board.
Recommendations:  It is recommended that this case be referred to Physical Evaluation Board.  It is also recommended that this patient (Applicant) be seen and evaluated by Internal Medicine for an addendum for hepatitis C evaluation.
Final Diagnosis:  Migraine Headache  34690 DNEPTE.

990811:	Counseling:  Advised of deficiencies in performance and conduct (Obligation to support his dependent children as per the court order issued by the Shelby County, Tennessee Court.  SNM counseled that if he fails to meet this obligation, will be in violation of that court order and subject to penalties as may be prescribed by the County Court which issued the order.  SNM was advised that a garnishment could be attached to his earning in an effort to collect pay in arrears, and to guarantee future payments.  SNM was further counseled that he cannot unilaterally decide to reduce the amount of child support payments.  SNM was advised that being reduced in rank due to one’s own misconduct is not justification for lowering the amount of monetary support for dependent children.  SNM was advised that if Applicant feels he can no longer meet his obligations, he must petition the court to have his obligation reduced.  SNM was further counseled that Applicant not only has a legal obligation, but a moral obligation as well to live up to his responsibilities as a father.  Failure to do so reflects poorly upon his character, and runs counter to the ideals of honor, courage, and commitment that we as Marines strive to embody.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

991001:	Applicant notified of the recommendation of the Naval Medical Center San Diego medical board of 3 August 1999.  Applicant chooses not to submit a statement in rebuttal.

991006:	Counseling:  Advised of deficiencies in performance and conduct (Violation Art 86 Unauthorized absence.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

991012:	Forfeiture of pay, restriction and extra duty awarded at NJP on 990515 vacated.

991221:	Findings of Naval Council of Personnel Boards, Physical Evaluation Board, Washington DC.  
Finding: Fit.
Recommended Disposition: Fit to continue on active duty.

000107:	Regimental Surgeon, 7th Marine Regiment, Recommendation for Administrative Separation:
	“This patient (Applicant) has had a Physical Evaluation Board for migraine headaches resulting in numerous amounts of light duty and Emergency Room visits.  This patient also has a history of Hepatitis C as a secondary condition of the Physical Evaluation Board.  The Physical Evaluation Board returned the results on 30 Dec 99 stating the patient is Fit for Full Duty.  Under section 6 of the Marine Corps Separation manual. Cpl K_ (Applicant) condition is considered a medical condition not a disability.  This service member (Applicant) should not be retained in the United States Marine Corps.  It is my recommendation that he (Applicant) be administratively separated.

000113:	Counseling:  Advised of deficiencies in performance and conduct (Diagnosed as having a physical condition (migraine headaches) that prevents performing military duties.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

000121:	Counseling:  Advised of deficiencies in performance and conduct (Diagnosed as having a physical condition (migraine headaches) by the Regimental Surgeon), sources of assistance provided and advised being processed for administrative discharge action.

000121:	Applicant advised of rights and having elected not 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.

000124*:	Applicant notified of intended recommendation for discharge by reason of a physical condition not a disability with an Honorable characterization. Applicant was notified that the least favorable characterization of service that he may receive was general (under honorable conditions) and that the Commanding General will make the final determination of the characterization. The factual basis for this recommendation was the diagnosis of debilitating migraine headaches by the Regimental Surgeon.  
[*Note: The Applicant was directed to respond to the Notification no late than 20000128.  The Applicant responded to the Notification on 20000121.  It is believed that the date of Notification was prior to 20000121, not 20000124.]

000124:	Commanding Officer, Headquarters Company, 7th Marine Regiment (REIN), 1st Marine Division (REIN), FMF, Marine Corps Air Ground Combat Center, Twentynine Palms, CA recommended to Commanding General, via Commanding Officer, 7th Marines. Applicant’s discharge with an honorable by reason of physical condition which is not a disability.    Commanding Officer’s comments:  “This Marine suffers from debilitating migraine headaches and has a history of Hepatitis C that render him incapable of carrying out his duties as an active duty service member.
	As documented by medical officers, Corporal K_ (Applicant) experiences debilitating headaches twice a week, these headaches prevent him from going to the field, standing watch, and prevents him from interacting socially with fellow Marines.  When he had a headache, he is forced to lie in a quite dark room.  SNM is unable to carry out the demands of an active duty Marine. The results of Corporal K_ (Applicant)’s Physical Evaluation board for migraine headaches returned on 30 Dec 99; stating SNM is fit for full duty.  Lt V_, 7th Regiment Medical Officer recommends Corporal K_ (Applicant) not be retained, and be administratively separated for a physical condition not a disability; per section 6 of the Marine Corps Separation Manual. Corporal K_ (Applicant)’s separation should be characterized as Honorable.  Upon separation, Cpl K_ (Applicant) will receive the following Pro/Con marks at separation, 4.0/4.0.
Corporal K_ (Applicant) has been notified in writing of the proposed action, the general and specific basis for separation, the least favorable characterization of service authorized and has been explained the purpose and scope of the Navy Discharge Review Board and the Board for Correction of Naval Records.
Corporal K_ (Applicant) has been advised in writing of the right and information detailed in paragraphs 6303 and 6304 of the reference, including the right to consult with a judge advocate prior to making any decision regarding this matter.”

UNDATED:	Commanding Officer, 7th Marines (REIN), forwarded recommending Applicant’s discharge.   Commanding Officer’s comments: “ Cpl K_ (Applicant) constantly has medical complaints and other problems of one type or another.  His wife also has several medical issues that require his attention and even required his early return from UDP.  As depicted in enclosure (1), he has been extremely disruptive to his unit and requires an inordinate amount of his unit’s time in getting medical attention and answering his problems and complaints.  He was processed for a discharge through the PEB, but that was denied.  I am convinced, as is my Regimental Surgeon, that though Corporal K_ does not have a physical problem that is considered a disability, he will continue to have migraine headaches and other constant medical complaints and will not be productive in further service.

000229:	GCMCA, Commanding General, 1st Marine Division (Rein), Camp Pendleton, CA, directed the Applicant's discharge with a general (under honorable conditions) by reason of physical condition not a disability.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20000310 by reason of convenience of the government due to condition not a disability (A) with a service characterization of general (under honorable conditions).  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 (B and C).  

In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable.  Specifically, Applicant alleged that his command decided that he was malingering because he spoke out on the dangers of the anthrax vaccine.  The Applicant also states that he was forced to accept nonjudicial punishment instead of a court martial, which resulted in his discharge.   The record, however, contains no evidence of any wrongdoing by the government or anyone involved in the discharge process.  The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and/or the reason for discharge if such change is warranted.  There is no evidence of impropriety or inequity in the Applicant’s discharge.  The Applicant’s misconduct is clearly documented.  Therefore, relief is denied. 

When the service of a member of the U.S. Marine Corps has been honest and faithful, it is appropriate to characterize that service as honorable.  A general 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 stated that he was the subject of nonjudicial punishment for violation of UCMJ Article 86.  The record shows that the Applicant’s service was marred by a nonjudicial punishment proceedings for violations of Articles 90 (willfully disobeying lawful order of superior commissioned officer) and 91 (willfully disobeying noncommissioned officer) of the UCMJ.  Violations of UCMJ Articles 90 and 91 are considered serious offenses.  Further, the Applicant received 6 retention warnings, to include a counseling for violation of UCMJ Article 86.  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.

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.  Marine Corps Separation and Retirement Manual, (MCO P1900.16E, effective 18 Aug 95 until 31 Aug 2001), paragraph 6203, CONVENIENCE OF THE GOVERNMENT.

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

C.  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

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