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

FOR OFFICIAL USE ONLY

 ex-LCpl, USMC
Docket No. MD05-01226

Applicant’s Request

The application for discharge review was received on 20050712.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record discharge review.  The Applicant designated a civilian counsel as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060406.  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 by reason of misconduct due to the commission of a serious offense.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application and/or from an attached document/letter to the Board:

“Application for correction of military record under the provisions of title 10, U. S. code, section 1552 (5, 6)
Application for the review of discharge from the Armed Forces of the Unites States (6):

I, R_ E_ K_(Applicant), would like to request that my discharge determination of Other than Honorable be changed to a Medical discharge under Honorable conditions as to reflect my situation at the time of my discharge determination and also my possible reinstatement of the rank Sergeant (E-5) of which I maintained for nearly 5 years.  My determination was viewed from the general appearance which was from my incarceration over 6 months and not from the underlying reasons leading up to this unfortunate situation.

The incident, which lead to my incarceration was caused by serious mental illnesses obtained from numerous military stressors.  I voluntarily sought help & treatment from M_ D. H_, Ph.D., LT, MSC, USNR at MCAS Yuma, AZ in February 2004.  Dr. H_ diagnosis was Obsessive Compulsive Disorder (with compulsions).  I was also diagnosed with Obsessive Compulsive Disorder by Dr. M.K.  R_, CDR, MC, USNR in March 2004.  Dr. R_ prescribed Clomipramine for treatment.

Prior to my incarceration & during I did not receive any treatment even though medication/therapy was prescribed.  I was evaluated by two court appointed doctors while incarcerated.  I was first seen by A_ B. H_ II, Ph.D., Licensed Psychologist, and was diagnosed with Bipolar Disorder Manic with Psychotic features, primarily a thought disorder and also an Obsessive-Compulsive Disorder.  I was also seen by J_ L. P_, M.D., Forensic Psychiatry, and was diagnosed with likely suffering from an Affective Disorder, which may be Bipolar Disorder (Manic Depressive Illness) or an Obsessive Compulsive Disorder.  Both Dr’s H_ & P_ stated that medication and therapy would have been of benefit while incarcerated even though not received.  I strongly believe I received these illnesses during the last 3 years of my honorable service.

Since my release, January 6, 2005, till present I have been in treatment with T_ R. S_, N.P.-C, Psychiatric Nurse Practitioner at the Excel Group in Yuma, AZ.  I have been diagnosed with Bipolar Disorder Manic Depressive and Obsessive Compulsive Disorder.  I have been prescribed Risperdal for Bipolar Disorder and Fluvoxamine for Obsessive Compulsive Disorder which I am still currently taking.

Thank you for your time and consideration.

Respectfully submitted,
[signed]
R_ E. K_(Applicant)
(Social Security number deleted)

Upon checking into my last command in August 2001 to the end in April 2004 I experienced severe discrimination and stress which my spouse also experienced that led to a complete decline of my mental functioning that ultimately led to my volunteering to be turned into the hands of civilian authorities for a domestic situation enhanced by the command CSSD-16, Yuma, AZ.  I have been medically disabled and unable to attain work as a result thereof also.  I had previously served nearly 12 years of honorable service with almost all of it attaining a perfect score on my physical fitness test and had received a superior fitness report by my Commanding Officer in a combat zone acting as a Career Planner for several commands that were without them.
During my 12 years of honorable service I have earned the following awards and citations:
Navy and Marine Corps Achievement medal,
Marine Corps Good Conduct Medal (3),
Global War on Terrorism Expeditionary Medal,
Sea Service Deployment Medal (2),
National Defense Service Medal (2),
Navy and Marine Corps Overseas Ribbon (2),
Southwest Asia Service Medal (2),
Kuwait Liberation Medal (Kuwait),
Kuwait Liberation Medal (Saudi Arabia),
Armed Forces Expeditionary Medal,
Presidential Unit Citation,
Navy Unit Commendation,
Certificate of Commendation (Individual Award-2)
Rifle Sharpshooter Badge.

I ask of you that in spite of all the above to please reconsider the discharge determination I have been given. Thank you very much.

Respectfully Submitted,
R_ E. K_(Applicant)”

Additional issues submitted by Applicant’s civilian counsel:

“To Whom It May Concern:
Please be advised that I have been retained by Lance Corporal R_ K_(Applicant) to represent him in any further proceedings.  I would like to take this opportunity to put the facts of this case into what we believe is the proper perspective.  As you are aware, Lance Corporal K_(Applicant) began his military career in 1988.  He served from 1988 through 1992 and was honorably discharged.  He re-enlisted in 1996 and has been in the Marine Corp up until the date of his administrative separation.  He was deployed for Operation Desert Shield and Desert Storm during Gulf War I and also served in Operation Iraqi freedom with the third marine air wing.  Lance Corporal K_(Applicant) served honorably throughout his military career.  Towards the end of his military career his mental disorders were causing serious problems that resulted in an offense whereby Lance Corporal K_(Applicant) was prosecuted in a civilian court.  It is interesting to note that in Lance Corporal K_(Applicant)’s medical records, particularly the record of January 15, 1988 where he was evaluated for entry into the armed services and at that time it was determined that there was “ no evidence of mental illness.” It would appear that circumstances while Lance Corporal K_(Applicant) was fulfilling his military obligations caused Lance Corporal K_ (Applicant) to develop serious mental problems.  In 1988 during his admissions examination we find, again, that there was no evidence of mental illness.  The medical records have been attached for your review.   We know that Lance Corporal K_ (Applicant), upon his discharge, was diagnosed with a serious mental disorder.  It would appear that Lance Corporal K_ (Applicant) developed those mental disorders while serving in the United States Marine Corps.  Lance Corporal K_ (Applicant) was evaluated by a civilian psychologist and a civilian psychiatrist during the course of his criminal prosecution.  On March 17th, 2005 as well as June 22nd, 2005 T_ R. S_ , the psychiatric nurse practitioner, diagnosed Lance Corporal K_ (Applicant) with bi-polar disorder and obsessive compulsive disorder.  She also indicated “ R_ (Applicant) is considered to be seriously mentally ill.”  The reports from the psychiatrist and the psychologists who have evaluated Lance Corporal K_ (Applicant) as well as a portion of his medical records are attached to this application for your review.  Of interest is that portion of Dr. P_ report wherein his opinion suggests, “one has to wonder if he was able to conform his conduct to the requirements of the law around the time of the alleged offense.”  Given these mental health factors that are now influencing Lance K_ (Applicant), we area asking for an upgrade or change of his discharge status to honorable based on years of honorable service as well as the fact that his mental disorders may have influenced his conduct.  Due to his illness he is unable to obtain meaningful employment and at this juncture it would appear that he has a permanent disability.  We are also requesting that Lance Corporal K_ rank of Sergeant/E-5 be reinstated.  Lance Corporal K_ is in need of and entitled to disability compensation.  Lance Corporal K_ has accumulated close to twelve years of honorable service which he provided to the United States Marine Corp.  It is fundamentally unjust to characterize his service as dishonorable for conduct over a relatively brief period of time as it relates to the many years of honorable service.  As early as June 1997 Lance Corporal K_ was diagnosed with major depressive disorder and in Dr H_ report based on an evaluation that was done on July 28th, 2004, it was determined that Lance Corporal K_ suffers from a bi-polar disorder with manic and psychotic features as well as obsessive compulsive disorder.  It is clear that when Lance Corporal K_ initially enlisted he had no evidence of any mental illness.  However, upon his second enlistment in 1996, he was evaluated in June of 1997, as reflected in his medical reports, he had been diagnosed with a major mental health disorder as well as obsessive-compulsive disorder.  The mental health disorders were developed while on active duty with the United States Marine Corp., they’re service related and Lance Corporal K_(Applicant) discharge status should be changed to a medical discharge under honorable conditions.

Since June of 1997 the Marine Corp was aware that Lance Corporal K_(Applicant) suffered from a major mental disorder.  The medical records clearly reflect the progression of these disorders while on active duty.  Given his participation in the first Gulf War as well as the Iraqi War one could certainly suppose that his service and observations in both of those theaters could have created or exacerbated a major mental health disorder.  We are asking for the following relief that an upgrade in his discharge status be medical with honorable conditions based on the fact that the development of the major mental health disorder was during a period of time when Lance Corporal K_(Applicant) was on active duty with the United States Marine Corp.  We are also asking that the military record be corrected to reflect Lance Corporal K_(Applicant) discharge as medical under honorable conditions.  If I can be of further assistance in any manner, please do not hesitate to contact my office.

Sincerely,
[signed}
M_ T. T_, Jr.
Attorney at Law”

Documentation

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

Applicant’s DD Form 149, dtd June 20, 2005
Naval Branch Medical Clinic, Marine Corps Air Station Yuma, Psychological 	Evaluation, dtd February 25, 2004 (3 pages)
Naval Hospital Camp Pendleton Substance Abuse Rehabilitation Program Department, 	Discharge summary, dtd March 29, 2004 (4 pages)
Letter from A_ B. H_ II, Ph. D., Licensed Psychologist, dtd August 20, 2004 with 	screening evaluation (4 pages)
Letter from J_ L. P_, M.D., Forensic Psychiatry, dtd September 6, 2004 (4 pages)
Letter from T_ R. S_, NP-C, Psychiatric Nurse Practitioner, dtd March 17, 2005
Letter from T_ R. S_, NP-C, Psychiatric Nurse Practitioner, dtd June 22, 2005
Report of Medical Examination, dtd January 15, 1988
Report of Medical History, dtd January 15, 1988 (2 pages)
Limited Duty Board Proceedings, dtd July 2, 1997
Mental Health Department, U.S. Naval Hospital Okinawa, Medical Board Report for 	abbreviated limited duty, dtd June 19, 1997 (3 pages)
(15) pages from Applicant’s medical records

PART II - SUMMARY OF SERVICE

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

	Inactive: USMCR (DEP)	19880115 - 19880515	COG
	Active:   USMC	19880516 - 19920515	HON
	Inactive: USMCR	19920516 - 19960516	HON
	Active:   USMC	19960701 - 19990630	HON
	Active:   USMC	19990701 - 19991019	HON

Period of Service Under Review:

Date of Enlistment:  19991020		Date of Discharge:  20041104

Length of Service (years, months, days):

Active:    05  00  15  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  23 days
	Confinement:		  203 days (IHCA)

Age at Entry:  29

Years Contracted:  4 (20 month extension)

Education Level:  12				AFQT:  68

Highest Rank:  Sgt				MOS:  0151/0161

Final Enlisted Performance Evaluation Averages (number of marks):  Enlisted performance reports were available to the Board for review.

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  Navy and Marine Corps Achievement Medal, Marine Corps Good Conduct Medal (4), Global War on Terrorism Expeditionary Medal, Sea Service Deployment Medal (2), National Defense Service Medal (2), Navy and Marine Corps Overseas Service Ribbon (2), Southwest Asia Service Medal (2), Kuwait Liberation Medal (Kuwait), Kuwait Liberation Medal (Saudi Arabia), Armed Forces Expeditionary Medal, Presidential Unit Citation-Navy, Navy Unit Commendation, Certificate of Commendation (Individual Award) (2), Rifle Sharpshooter Badge, 

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  MARCORSEPMAN Par. 6210.6.

Chronological Listing of Significant Service Events:

991020:	Reenlisted this date for a term of 4 years.

011207:	Commanding Officer, Combat Service Support Detachment 16, letter to the Applicant, subject is REQUIRED FAMILY ADVOCACY CLASSES TO ATTEND.  CO’s comments:  “This is to inform you that after review and recommendations given to me by Mr. R_ B. S_ your FAP case coordinator, conducted on 5 December 2001, you (Applicant) will attend and consider it your appropriate place of duty on the prescribed dates sated below.  Failure to attend any said classes without permission from myself will be considered a violation of the UCMJ, and result in disciplinary action.”

020212:	First Endorsement of CRC Letter dated Feb 11 2002.
Subj:  Family Advocacy Case Review Committee Determination Pertaining to Sergeant R_ K_ (Applicant).  In response to the Family Advocacy Recommendations, the following is submitted:  Command supports all Family Advocacy Recommendations and will require member to comply.

020624:	Family Advocacy Program Manager, Personal Services, MCAS Yuma AZ.  Family advocacy case review committee determination: Sgt K_ (Applicant) referred to Family Advocacy Program due to an incident of alleged spouse abuse that occurred on 13 Aug 01.  The case was presented to the Case Review Committee (CRC) on 07 Feb 02 with a finding of substantiated spouse about with the service member as the perpetrator and the spouse the victim.  The CRC determined that the service member was engaging in Level II spouse abuse.  The original treatment recommendations made by the CRC were:
1. The service member was to have continued his court-ordered civilian   domestic violence treatment. 
2.	The service member was to have continued his individual counseling through FAP. 
3.	 The service member was to have continued attending the Anger Management course.
4.	The service member was to have received a SACC evaluation.
5.	The spouse was to have been offered a SACC evaluation.  
6.	The couple was to have been offered couple’s counseling.  This case was presented for review on 20 Jun 02.  This case will be reviewed in 60 days.
The service member (Applicant) continues to attend his civilian domestic violence treatment.  The service member (Applicant) has completed the Anger and Stress Management courses.  The service manager has received his SACC evaluation.  He also continues to attend individual counseling sessions through FAP. The spouse declined the SACC evaluation.  The couple has not been attending couple’s therapy and are pursuing a transfer of duty stations due to the spouse’s documented medical condition

031008:					Applicant granted extension of enlistment period for 20 months.

040131:	Marine Corps Air Station Yuma, AZ, Military Police Desk Journal.  Domestic Assault.  The Applicant’s wife reports that the Applicant was intoxicated and that they had been involved in a verbal altercation.  The Applicant had assaulted and restrained her at her residence in Yuma, AZ.

040202:	Commanding Officer, Combat Service Support Detachment 16 issues a Military Protective Order to the Applicant.  The order is issued concerning the Applicant’s association with J_L.K_ (Applicant’s wife).

040219:	Family Advocacy Program Manager, MCAS Yuma, AZ.  Family Advocacy Program Manager case review committee status: Incident substantiated spouse abuse with Applicant as the perpetrator.  
CRC recommendations: 
1.	A mental health assessment at BMC and treatment.  
2.	A SACC evaluation and treatment.  
3.	After the completion of the first two recommendations, the case will be brought back before the CRC to review FAP treatment services for the service member.

040224:	CRC Status Determination Letter.  Commanding Officer, 1st Force Services Support Group supports CRC recommendations.  Applicant informed of CRC’s determination and advised of his right to request a review.

040225:	Psychology Clinic Naval Branch Medical Clinic, Marine Corps Air Station Yuma.  Psychological evaluation of Applicant.  Applicant was self-referred for an evaluation at the recommendation of his Family Advocacy counselor and Substance Abuse Counseling.  Diagnosis:
	I:  Alcohol Dependence; Obsessive Compulsive Disorder (Praying Compulsions), Marital Problems
	II: No Dx on Axis II
	III: Deferred
	Recommendations:
1.	Sgt K (Applicant) should attend treatment for alcohol dependence and gambling at Naval Hospital Camp Pendleton.  Until such time as treatment can begin, Sgt K_ (Applicant) should abstain from using alcohol and gambling.  HE should attend regular AA meetings to help sustain abstinence and not attend functions where alcohol is served.
2.	Sgt K (Applicant) should continue to follow recommendations and treatment plan established by the Family Advocacy Program for domestic violence issues.  
3.	Sgt K (Applicant) should begin weekly individual psychotherapy to focus on praying compulsions. [Extracted from document provided by the Applicant]. 
	
040310:	Naval Hospital Camp Pendleton Substance Abuse Rehabilitation Program Department (SARPD). Applicant entered into partial hospitalization at SARPD.
Diagnosis:
Axis I:  Alcohol dependence, pathological gambling
Axis II: Deferred.  
Axis III: None.  
Axis IV: Routine military service.  
Axis V: GAF 75.  

040329:	Naval Hospital Camp Pendleton Substance Abuse Rehabilitation Program Department, Discharge Summary.
Exit Diagnosis:  AXIS I: Alcohol dependence, pathological gambling, obsessive compulsive disorder. 
AXIS II: None.  
AXIS III: None.  
AXIS IV: Routine military service.  
AXIS V: GAF 75.  
Due to lack of motivation and sincere effort as manifested by unauthorized absence.  The patient was exited as non-amenable to treatment.  The patient chose to hire a cab and leave the vicinity of a SARPD activity despite awareness that this is grounds for an automatic exit from treatment.  
Disposition:  The patient is returned to duty (regular diet and no physical activity limitations) as a partial hospitalization failure.  Recommend that he be processed for administrative separation in accordance with MCO P1700.24B.  In the intermin or if he is retained, he should be placed in a formal one year recovery program.  This should include abstinence, command monitored attendance at a minimum of three AA/GA Big Book, get a sponsor and use him, get a home group and weekly follow-up with his SACO.

040329:	Applicant to unauthorized absence on 040329.  [Extracted from DD Form 214, Block 29.]

040421:	Applicant from unauthorized absence on 040421 (23 days).  [Extracted from DD Form 214, Block 29.]

040421:	Yuma County Sheriff’s Office Incident report: Domestic assault between 040410 and 040412 on spouse.  Offender is Applicant. 

040421:	Applicant in hands of civilian authorities.  [Extracted from DD Form 214, Block 18.]

040426:	First Precinct Justice Court County of Yuma, State of Arizona.  Applicant charged with attempted second degree murder, a felony, and kidnapping (DV), a felony.

040429:	Executive Officer, Combat Service Support Company 133 recommended Applicant be administratively separated from active service as soon as possible.  He (Applicant) has exhibited extremely poor judgment and dishonorable conduct by going into an unauthorized absence status in lieu of Level 3 failure from alcohol rehabilitation.  He (Applicant) is currently being held by civilian authorities for multiple crimes related to domestic violence.

040719:	Applicant notified of intended recommendation for discharge by reason of alcohol rehabilitation failure and misconduct due to commission of a serious offense with a characterization of service of under other than honorable conditions.  The factual basis for this recommendation was removal from Level III treatment as evidenced by SACO documents detailing your drop from treatment and your continued involvement with military and civilian authorities for domestic violence as evidenced by police reports and legal documents.

040719:	Commanding Officer, Combat Service Support Company 133 recommended Applicant’s discharge under other than honorable conditions.  Commanding Officer’s comments:  “Recommend immediate Administrative Discharge with the least favorable characterization of service, under other than honorable conditions.
Sergeant K_(Applicant) was found guilty in a California court of the charge of spousal abuse prior to my taking command that made him lose his original MOS, 0161 Postal Clerk.  Since then he has served as our Career Planner and performed well, especially during OIF.  But sometime after his return he had two other domestic abuse allegations that, at the CRC, had him reclassified a Level III abuser.  During his treatment evaluations it was determined that he needed to go to Level III.  At Level III he purposefully did not follow established rules and was subsequently dropped from the treatment program as a failure.  On his own volition he chose to go into an Unauthorized Absence  (UA) status the same day the unit was to pick him up from Level III.  He stayed in a UA status for over (3) weeks.  In the time he was UA he reconciled with his wife despite a Military Protection Order (MPO) restricting any contact with her, and had another domestic incident that lead to his being incarcerated in the Yuma County Jail on felony charges, ranging from attempted murder to domestic abuse.
Sergeant K_(Applicant) coming close to service limitations was on an (18) month extension in hopes to get him promoted before his troubles started.  Sergeant K_(Applicant) actions are very surprising but also very severe.  It would be in the best interest of the Marine Corps to Administratively Discharge Sergeant K_(Applicant) under the least favorable conditions as quickly as possible.  There is no favorable future service or reasonable hope Sergeant K_(Applicant) will reach his service limitations at this point.  The seriousness of his charges in Yuma County court warrant our divesture efforts and will allow the command to be posted a replacement as soon as he can be dropped from our Marine Corps ranks.  He can no longer be relied upon to perform to the level we require of a Sergeant of Marines.”

040720:	Applicant advised of rights and having consulted with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

040728:	Applicant referred by A_ J. G_, Judge of Superior Court, Yuma County, Arizona, to screening evaluation by licensed psychologist. 
Reason for referral:  R_ K_ (Applicant) was referred for a screening evaluation in order to determine the need for a Rule 11 procedure.  
Diagnostic Impression:  R_ K_ is exhibiting behavioral characteristics consistent with bi-polar disorder with manic features, and obsessive-compulsive disorder.
AXIS I: Bipolar disorder, manic with psychotic features (thought disorder) Obsessive-Compulsive disorder. 
AXIS II: Deferred.  
AXIS III: Medical conditions by report: None.  
AXIS IV: Severity of psychosocial stressors (major mental health disorder, psychoneurotic disorder, legal problems) severity: 4 - Severe.  
AXIS V: Highest level of adaptive functioning past year: 85.  Current level of adaptive functioning: 50.  
Statement of Competency to Stand Trial:  R_K_ (Applicant) understands the charges pending against him.  He is aware if the role and function of the judge, jury, prosecutor, and his own attorney.  He does however have a major mental health disorder which is not being treated, and in order to cooperate more fully with his attorney psychiatric treatment should be received while he is in detention.  
Recommendations: 
1.  Applicant should be seen by a psychiatrist while at the Yuma County Adult Detention Center, and is willing to accept such treatment.  
2.	Applicant had been treated by Dr. P_ at MCAS-Yuma and those records should be available.  
3.	At least 60 days of psychiatric treatment, and medication management are recommended.  With this, Applicant should be able assist his attorney completely in his own defense.

040827:	Detailed Defense Counsel, letter to Commanding General, 1st Force Service Support Group.  Subj: REBUTTAL TO ADMINISTRATIVE SEPARATION IN CASE OF SERGEANT R_ E. K_ (Applicant).

040906:	Rule 11 Evaluation conducted by J_ L. P_, M.D., Forensic Psychiatry as ordered by the Yuma County Superior Court on August 19, 2004 to evaluate the competency of Mr. K_ (Applicant) pursuant to Rule 11 of the Arizona Rules of Criminal Procedure.  
	Opinion:  “ At the current time it is my opinion, within a reasonable degree of psychiatric certainty, that Mr. K_ is competent.  He has a factual as well as rational understanding of the proceedings he is facing.  Furthermore, it is my opinion that he can effectively assist his attorney in his defense.”

041006:	SJA review determined the case sufficient in law and fact.

041027:	GCMCA, Commander, 1st Force Service Support Group (Rear) directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense and alcohol rehabilitation failure.  The primary basis for separation shall be commission of a serious offense.

041104:	Applicant released from civilian authorities.  [Extracted from DD Form 214, Block 18].

	Service Record was missing elements of the Summary of Service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20041104 by reason of misconduct due to the commission of a serious offense (A and B) with a service characterization of under other than honorable conditions.  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 (C and D).  The Board presumed regularity in the conduct of governmental affairs (E).

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.  The summary of service clearly documents that the commission of a serious offense was the reason the Applicant was discharged.  Since no other Narrative Reason for Separation could more clearly describe why the Applicant was discharged, a change would be inappropriate.

Commission of a serious offense does not require adjudication by nonjudicial, judicial proceedings or civilian conviction; however, the offense must be substantiated by a preponderance of evidence.  The Applicant was charged with attempted second degree murder, a felony, and kidnapping (DV), a felony by the First Precinct Justice Court County of Yuma, State of Arizona. According to the UCMJ, attempted murder and kidnapping are serious offenses.  The statements and documents provided by the Applicant do not refute the presumption of regularity in this case.  The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his action.  The Applicant was provided the opportunity to present his case before an administrative board, but waived that right, thus accepting the discharge recommended in the letter of notification.  Relief 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.  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 pled guilty to spousal abuse in civil court on 20010821.  On 20040131, the Applicant’s spouse filed a complaint with the military police, claiming that the Applicant had assaulted and restrained her while he was intoxicated.  On 20040202, a Military Protective Order was issued on the Applicant in which he was to have no contact with his spouse.  On  20040310 the Applicant entered a Level III alcohol rehabilitation program but he was determined to be non-amenable to treatment and he exited the program on 20040329 and began a 23 day period of unauthorized absence.  On 20040421, the Applicant was apprehended by civilian authorities and charged with attempted second degree murder and kidnapping as a result of an incident with his spouse.  The Applicant underwent two court ordered psychiatric examinations, which determined that the Applicant was competent to stand trial.   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 contends that he did not receive “treatment” prior to and during his incarceration of 20040421 to 20041104.  When reviewing a discharge, the NDRB does consider the extent to which a medical problem might affect an Applicant’s performance and ability to conform to the military’s standards of conduct and discipline.  The Applicant’s service and medical records show that that Applicant was evaluated by a medical officer on 19970619, diagnosed with major depressive disorder and alcohol abuse, and placed on a 6 month limited duty status with medication.  On 20011207, the Applicant was directed to attend Family Advocacy Classes as a result of a Family Advocacy Case Review Committee Determination due to Level II spouse abuse.  On 20040225, the Applicant was self-referred for a psychological evaluation and substance abuse counseling, at the recommendation of his Family Advocacy Counselor.  On 20040421, civil authorities apprehended the Applicant.

The Applicant requests that he be awarded a medical discharge.  Per regulations, the NDRB lacks the authority to change a discharge to or from a physical disability.  Relief on this issue is not granted

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 additional evidence related to this 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 P1900.16E), effective 01 September 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 80 attempted murder, and Article 134, kidnapping.

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

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

E.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs.  

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