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

FOR OFFICIAL USE ONLY

 ex-PFC, USMC
Docket No. MD05-01385

Applicant’s Request

The application for discharge review was received on 20050816.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions) and the Narrative Reason for Separation be changed to “Medical Discharge.”  The Applicant requests a documentary record discharge review.  The Applicant did not designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060517.  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 and the reason for discharge shall not change.  The discharge shall remain Under Other Than Honorable Conditions by reason of separation in lieu of trial by court-martial.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“The discharge was improper, because of lack of jurisdiction over service member for failure to expeditiously give an administrative discharge at an earlier time as recommended by military psychiatrist.  Service member was not mentally competent when lawyer suggested an GOS (separation in lieu of trial).  Service member’s lawyer was incompetent.  Counsel inadequately assisted the service member by failing to describe the defenses available, and the weaknesses of the case.  Counsel did not give attention to SM (service member) special problems, such as his mental instability and personality disorders. It can be argued that the results of the psychiatric examinations were improperly ignored, otherwise there would have been a better possibility that the GOS would not have been accepted.  SM can show post discharge evidence of psychiatric disorder, therefore proving the military examiner’s diagnostic to be with good intentions, true, and improperly ignored.”

Documentation

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

Letter from Social Security Administration dtd July 1, 2005 (2 pgs)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	19930909 – 19940712		COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19940713		Date of Discharge:  19950913

Length of Service (years, months, days):

Active:    01  02  01  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  * Medical record indicates “UA 6 times”
	Confinement:		  none

Age at Entry:  17 (Parental Consent)

Years Contracted:  4 

Education Level:  12				AFQT:  41

Highest Rank:  PFC				MOS:  3381

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.1 (3) 			Conduct:  4.0 (3) 

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  Rifle Marksman Badge, National Defense Service Medal.

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

UNDER OTHER THAN HONORABLE CONDITIONS/IN LIEU OF TRIAL BY COURT-MARTIAL, authority:  MARCORSEPMAN Par. 6419.

Chronological Listing of Significant Service Events:

950124:	NJP for violation of UCMJ, Article 113:  At FSScol, MCSSS, MCB, CamLej, Bldg 509B, 0129, 950113, while posted as a fire/security watch, was found sleeping on post.
Award:  Forfeiture of $150 per month for 2 months (forfeiture of $150 per month for 1 month, suspended for 6 months, at which time, unless sooner vacated, will be remitted without further action), restriction and extra duty for 15 days.  Not appealed.

950124:	Counseling:  Advised of deficiencies in performance and conduct (Applicant sleeping while posted as a Fire/Security watch on 950113), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

950306:	Counseling:  Advised of deficiencies in performance and conduct (Applicant’s disorderly conduct at FSScol, MCSSS, MCB, CamLej, 0730, 950306 by fighting with another Marine in violation of the UCMJ), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

950420:	Tripler Army Medical Center (TAMC), HI.  Applicant admitted to TAMC Emergency Room for psychiatric examination.  Applicant complained of depression for four years, worst in the last five weeks.  Applicant admitted to TAMC for 4 days.  Condition of the Applicant at discharge was stable.  Applicant was instructed to follow-up with K-Bay Mental Health on 28 Apr 95.
	Final Diagnosis:
	Axis I:  Adjustment disorder with depressed mood versus major depressive disorder.  V code for occupational problem.
	Axis II:  Borderline traits.
	Axis III:  Reactive airway disease.

950428:	Applicant examined at Kaneohe Bay MCB BMC, Psychology Clinic.  Applicant reports that he has a suicide plan.  Applicant states that he was arrested for stealing a car 1 year ago.  The Applicant states that he has had 4 Pg 11’s for fighting, sleeping on watch, 2 UA’s, and disobeying a lawful order.  The Applicant states that he has had 3 office hours for sleeping on watch, 2 UA’s, and disobeying a lawful order.  In regards to alcohol, the Applicant states that he has experienced blackouts, drinks ½ fifth a day to get drunk.  
	Assessment:  Axis I:  Alcohol Dependence, Adjustment Disorder, Depressed Mood, Occupational Problem, Nicotine Dependence.
	Axis II:  Personality Disorder NOS with borderline and anti-social features.
	Axis III:  Reactive airway.
	Treatment Plan:  Psychiatric follow-up, Level III.
	Comments by S_ J. H_, LT/MSC/USNR (Staff Psychologist): “The member has a long-standing disorder of character and behavior, which is of such severity that hit renders him unsuitable for further military service.  It is not a condition which would require a medical board or further evaluation prior to disposition.  He should be processed expeditiously for and administrative discharge in accordance with NAVMILPERSMAN Chapter 36.  If retained on active duty, there will be an increasing risk of harm to himself and others due to his inability to effectively cope with the military environment.  He has engaged in self-destructive behavior in the past at times of stress, and efforts should be made to move him to a less stressful environment pending discharge.  He should be emergently re-evaluated if there are any suicidal threats or behavior.  Short-term mental health treatment for his condition is of limited benefit, and long-term treatment is not available within the military.  Hospitalization is not currently required but it may be necessary if there is a decline in his mental state.  He should not be given access to weapons and is non-deployable.

950605:	Counseling:  Advised of deficiencies in performance and conduct Circumstances of Applicant’s long-standing disorder of character and behavior.  After extensive testing and numerous evaluations by Lt S_ H_ it is recommended by this doctor that Applicant be administratively separated from the United States Marine Corps due to a personality disorder.  Recommendations for corrective action are to listen to the advice of the medical officers at Medical and to go to Medical for a second evaluation within 30 days of the initial evaluation dated 28 Apr 95.  Assistance is available through your Medical Officer, Base Chaplain, and your chain of command.  This entry is made to make you aware of the action  which may be taken after the second evaluation.  This action may be an administrative separation due to a personality disorder.  I am advised that within 5 working days after being informed of this entry a written rebuttal to the entry could be submitted and that such a rebuttal will be filed on the document side of the service record.  Applicant chose not to make a statement.

950614:	To Confinement.

950717:	Applicant examined at Pearl Harbor Psychology Department, BMC Makalapa.  Applicant is in the Ford Island Brig for being UA 6 times (mostly over sleeping), insubordination, and communicating a threat.  
Assessment: Axis I: Alcohol Dependence, Adjustment Disorder with Depressed Mood, Occupational Problem, Nicotine Dependence.
Axis II:  Personality Disorder NOS with Borderline and Antisocial Features.
Axis III:  Reactive airway.
Comments by S_ J. H_, LT/MSC/USNR (Staff Psychologist):  “ I strongly recommend expeditious Administrative Separation for Personality Disorder IAW Paragraph 6203.3 of  the MARCORSEPS Manual.  Please ensure that the Marine is counseled about his Personality Disorder as documented in SRB p. 11, pursuant to Paragraph 6105 of MARCORPSEPS Manual, MCO 1900.16C.  He is psychiatrically unsuitable for military service due to a longstanding disorder of character which existed before he entered the Marine Corps.  The Personality Disorder will not remit/be curable with available military Mental Health treatment.  He will continue to be a danger to himself and or others, and will continue to be an administrative burden to the command, so it would be best to Administratively Separate him.  F/U with me on 27 Jul @ 0930.  His current suicide/homicide risk is low.  He does not require psychiatric hospitalization.  He says he would seek help (and knows how) before harming himself and or others.”

950823:	GCMCA, Commanding General, Marine Corps Base Hawaii directed the Applicant's discharge under other than honorable conditions by reason of separation in lieu of trial by court-martial.

Service Record Book is missing elements of information and contains a partial Administrative Discharge package. 

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on19950913 in lieu of trial by court-martial (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).

In the absence of a complete discharge package, the Board presumed regularity of governmental affairs.  As such, the Board presumed that the Applicant requested discharge to escape trial by court-martial; that the Applicant had the elements of the offense(s) for which he was charged fully explained by counsel; that the Applicant admitted guilt to the offense(s); and that the Applicant had a complete understanding of the negative consequences of his actions.  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 actions.  The summary of service clearly documents that the Applicant’s request for separation in lieu of court-martial was the reason for which 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.  Relief denied.

In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable.  Specifically, the Applicant contends that his “discharge was improper because of a lack of jurisdiction over service member for failure to expeditiously give an administrative discharge at an earlier time as recommended by military psychologist.”  The record, however, contains no evidence of any wrongdoing by the Applicant’s Commanding Officer or anyone else for that matter in the discharge process.  The separation process was in strict compliance with the Marine Corps Separation and Retirement Manual.  In accordance with regulation, when separation processing is warranted for any reason in addition to personality disorder, dual or multiple processing is required.  Separation by reason of personality disorder is authorized only if the Marine’s ability to function effectively in the military environment is significantly impaired and if no other basis for separation applies.  In the Applicant’s case, the separation in lieu of trial by court-martial indicates that misconduct occurred and therefore provided the basis for separation in spite of the existence of a personality disorder. 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’s service was marred by a nonjudicial punishment proceedings for violations of Articles 113 of the UCMJ. In addition, the Applicant received 3 retention warnings, which he violated with continued misconduct.   Additional misconduct by the Applicant resulted in his separation in lieu of trial by court-martial.  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 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 6419, SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 
18 Aug 95 until 31 August 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 113, misbehavior of sentinel or lookout.

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