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

 ex-PFC, USMC
Docket No. MD04-01171

Applicant’s Request

The application for discharge review was received on 20040709.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance hearing before the board in the Washington National Capital Region.  The Applicant did not list any on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041112.  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/IN LIEU OF TRIAL BY COURT-MARTIAL, authority: MARCORSEPMAN Par. 6419.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Submitted by Applicant subsequent to submission of application:

“To the Review Board,

In reference to docket number MD04-01171.  I am submitting this summary of my case.

I joined the Marine Corps with a sense of obligation to those who served before me and eagerly shipped off to boot camp in August 1999.  It was there that I started to develop ankle and foot related problems that plague me to this day.  At first I tried to run and march through the pain, until my drill instructors ordered me to go to the medical center.  From boot camp through MCT through my MOS school, I was in and out of the medical centers with severe ankle pain and instability.  Initially I didn’t want to admit that I had a serious problem which would ultimately preclude military service.  Even at the Defense Language Institute, my MOS school, I tried to run through the pain because it was encouraged by most everyone, especially by my superiors.  When I would seek thorough medical evaluation, I would receive a few days of light duty; no mailer how much rest I got, my ankles would hurt so severely that I walked with a limp, and after a year and a half of enlistment, running was not an option.  I was shuffled in and out of the medical facility without a realistic analysis of my ankle problem.  I knew at this time that I could not continue military service in the Marine Corps; my ankles, not my resolve, simply could not handle the physical challenges of being a Marine.  Each time I would rest and try different braces and wraps given to me by the medical professionals, the pain would come back worse and worse; I knew permanent damage was done.  I became depressed and felt like I was a failure, but still managed to keep a 3.7 GPA at a school where the graduation rate was less than half.  When I began pursuing a medical discharge after I felt I had exhausted all the means provided to me by the military, I was met with resistance, threats, harassment, accusations of malingering, and was unable to get a referral off base to see an orthopedic specialist.  One time I was allowed to see a podiatrist who was able to pop both of my ankles nearly out of the socket when doing some testing and verbally told me that I should have never been viewed as fit for service, but he told me I needed to see an orthopedic surgeon, and put very little in his report to acknowledge the severity of my condition, which did little to persuade my detachment’s Gunnery Sergeant who told me to quit crying and go to class.  You see, there were only several hundred Marines stationed at the Defense Language Institute, and it was well known that I had the second highest grade in my particular class and was set to graduate in a couple of months.  I attempted to request mast in order to receive a med board but was silenced.  I became scared and felt trapped, and felt that I had run out of options.  I simply went UA.

When I enlisted.  I felt obligated to give 100% at all times.  I don’t feel that there was any derivation of reciprocation in how I was treated by my command and by the medical center.  when I was in genuine need of a medical discharge.  I also wish to point out that, although I could have taken more steps to beat the strong resistance by my superiors to receive a med board, there were other Marines who were granted medical discharges at this detachment, all of whom were being “processed out” over ridiculously long periods of time (I knew people who were stationed there for over two years after they were given a med board awaiting their processing).  The Marine Corps detachment would use these Marines for odd jobs and maintenance and janitorial work until they were done with them.  These were Americans who had already proven their high intelligence with preliminary testing to get into this elite field, sustained injury or developed a condition which prevented service, and made to do mindless labor instead of being granted reasonable due process.  Nearly all of these Marines were depressed, and many turned to alcoholism to deal with their situations.  The other branches of the military would process people out fairly all the time, but the Marines would not.  I knew that I could not go through this safely because of the depression I developed while serving.  Many times I had talked to the Navy Chaplain just to keep from going over the edge mentally while all of this was going on, but I knew that I was being treated unfairly and without justice, which is the very ideal that I thought I was trying to uphold as a Marine.

I turned myself in at Quantico, VA after several months of unauthorized absence and was given a general discharge under other than honorable conditions.  When I told my story to the Commanding Officer of the Battalion in which I was to be stationed while awaiting processing out, he and several of my platoon sergeants decided that my story was compelling and that I had valid reason for my actions.  They provided me with information on how to seek an upgrade of my discharge.

In the several years since then I have achieved much, and I still wish to serve the American people.  I attend Penn State University, where I have a 3.52 GPA and made the dean’s list last semester.  I am more than halfway done with my degree in Journalism with a minor in Asian Area Studies, which I want to use to become a far east correspondent with the American press and am making it my goal to use my language ability to report the truth to the American people, and reassure them that they can trust the newspapers despite the recent plagiarism and other terrible violations of trust.  I have worked much in order to pay for my schooling, since I do not qualify for the GI Bill, sometimes as much as full-time while simultaneously attending school full-time.  I will achieve my goal at all costs because I know that I can make a difference for this country.

I believe that I deserve an Honorable Discharge and am petitioning this board for an upgrade to such.  I have enclosed several documents that support the content of this letter.   I thank you for your time in reviewing my case.

Sincerely

W_ Z_ B_ (Applicant)”

Documentation

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

Copy of DD Form 214
Letter of character reference from E_ R_, Jr., dtd June 14, 2003
Letter of character reference from J_ W_ M_, undated
Letter from A_ E_ H_, dtd July 8, 2004
Copy of unofficial DLI transcript, undated
Copy of unofficial Penn State Grade, dtd 16 Aug 2004

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None
	Inactive: USMCR(J)		990218 - 990830	COG

Period of Service Under Review:

Date of Enlistment:  990831		Date of Discharge:  011018

Length of Service (years, months, days):

	Active:   02  01  17
	Inactive:  None

Age at Entry:  18			Years Contracted:  5

Education Level:  12			AFQT:  99

Highest Rank:  LCpl			MOS:  2600

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.9 (4)			Conduct:  3.9 (4)

Military Decorations:  None

Unit/Campaign/Service Awards:  REB

Days of Unauthorized Absence:  112

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:

010529:	Applicant declared a deserter on 010516 having been an unauthorized absentee since 0700, 010416 from Marine Corps Detachment Presidio of Monterey, CA.

010806:	Applicant surrendered to military authorities on 010806 (1600) at Security Battalion, MCB Quantico. Returned to military control. 

0108009:	Applicant the subject of a competency review board.  
Opinions:  SNM’s (Applicant) UA shows professional incompetence and a lack of self-discipline. 
Recommendation: that the SNM (Applicant) be reduced to the rank of Private First Class.

010809:	Applicant is administratively reduced to rank of PFC with a date of rank of 1 Feb 2000.

010811:	Applicant, having consulted with counsel certified under UCMJ Art 27b, requested discharge for the good of the service to escape trial by court- martial.  In the request the Applicant noted that his counsel had fully explained the elements of the offenses for which he was charged and that he understood the elements of the offenses.  He further certified a complete understanding of the negative consequences of his actions and that characterization of service would be under other honorable conditions.  The Applicant admitted guilt to the following violations of the UCMJ, Article 86: unauthorized absence.

011004:	SJA review determined the case sufficient in law and fact.

011010:	GCMCA, CG, MCB Quantico, approves request for an administrative separation in lieu of trail by court-martial.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20011018 under other than honorable conditions in lieu of trial by court-martial (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).

The Board found no indication from the service record and documentation provided by the Applicant that he was denied proper medical care for his injuries while on active duty.  On 20010811, the Applicant requested discharge for the good of the service to escape trial by court-martial.  In the request for discharge, the Applicant noted that his counsel had fully explained the elements of the offense for which he was charged and that he was guilty of the offense.  He further certified a complete understanding of the negative consequences of his actions and that characterization of service would be under other than honorable conditions.  While he may feel that his medical condition and perceived lack of treatment was a factor that contributed to his actions, the record clearly reflects his disregard for the requirements of military discipline and demonstrated that he was unfit for further service.  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.
 
Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question.  No such inequity or impropriety was discovered in the Board’s review of the Applicant’s record.  The NDRB is authorized however, to consider post-service factors in the recharacterization of a discharge. Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review, is considered.  To support his contention that he has “achieved much” since being discharged, the applicant provided four documents, all related to his college studies, to represent his post service.   The applicant's efforts need to be more encompassing than those provided.  For example, the applicant could have produced evidence of a verifiable employment record, documentation of community service, and certification of non-involvement with civil authorities, in order for consideration for clemency based on post-service conduct.  At this time, the applicant has not provided sufficient documentation of post service character and conduct to mitigate the misconduct that resulted in his characterization of discharge.  Therefore, 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.  Paragraph 6419, SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F), 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 86, unauthorized absence for more than 30 days.

C.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

D.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

E.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

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 “afls14.jag.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:

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