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

 ex-LCpl, USMC
Docket No. MD00-00551

Applicant’s Request

The application for discharge review, received 000328, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed to convenience of the government.  The applicant requested a documentary record discharge review.  The applicant listed AMERICAN LEGION as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 001116.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service.  The Board’s vote was unanimous that the character of the discharge shall change.  The discharge shall change to: GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: MARCORSEPMAN Par. 6210.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  (EQUITY ISSUE) This former member avers that medication that he was taking for a back injury contributed to and mitigated his misconduct of record.  On this basis, he opines that upgrade of his character of service is warranted.

2.  (EQUITY ISSUE) This former member further proffers that his UOTHC discharge is to harsh given the relatively minor nature of his UCMJ violations and his otherwise creditable service period.

3.  (EQUITY ISSUE) This former member finally requests that the Board include provisions of SECNAVINST 5420.174C.,enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of his application. 

Documentation

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

Copy of DD Form 214 (4)
Letter from applicant (6pgs)

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None
	Inactive: USMCR(J)		921219 - 930524	COG

Period of Service Under Review:

Date of Enlistment:  930525		Date of Discharge:  971008

Length of Service (years, months, days):

	Active:  04  04  14
	Inactive:  None

Age at Entry:  17			Years Contracted:  6

Education Level:  12			AFQT:  64

Highest Rank:  Cpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.3 (11)		Conduct:  4.2 (11)

Military Decorations:  None

Unit/Campaign/Service Awards:  Expert Rifle Badge (2nd), NDSM, USCGSOSR, OR, Meritorious Mast, HSM, GCM, SSDR, MUC, CGMUC, Pistol Marksman Badge, JMUA, CertCom 

Days of Unauthorized Absence:  None 

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  MARCORSEPMAN Par. 6210.3.

Chronological Listing of Significant Service Events:

960903:	Counseled for deficiencies in performance and conduct.  [Drinking alcohol under the legal age of 21] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

970610:	Counseled for deficiencies in performance and conduct.  [Extreme lack lf judgement while on liberty incident accompanied three other Marines south of the international border.  SNM's total disregard that one of the non-rated Marines was pending drug charges which later resulted in a conviction at a SPCM is a reflection of his extreme lack of judgement.  The evening ended with the hospitalization of SNM at Balboa Naval Hospital.  The medical examination showed that the SNM had gone unconscious due to the excessive amount of alcohol consumed which resulted in alcohol poisoning.  This blatant and extreme lack of judgement by consuming large quantity of alcohol has caused great concern as to SNM's ability as a Non-commissioned Officer and possible alcohol dependency.  The conduct and poor example displayed for the non-rated Marines violates the high standards of conduct expected of a NCO.  This irresponsible conduct that SNM has displayed is prejudicial to good order and discipline within this command and the United States Marine Corps.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

970703:	NJP for violation of UCMJ, Article 86: Did on or about 0630, 970619, absent himself from his appointed place of duty, to wit: HqSvc Co office, and did remain so absent until on or about 0705, 970619, violation of UCMJ Article 107: With intent to deceive, make a false statement to GySgt H____ as to the whereabouts of his location.
	Award:  Forfeiture of $313.00 per month for 1 month, restriction and extra duty for 14 days.  Not appealed.

970703:	Counseled for deficiencies in performance and conduct.  [Your recent failure to arrive at your appointed place of duty, and your failure to identify your whereabouts when directly asked, has resulted in Company NJP.  This conduct can not and will not be tolerated, especially from a NCO.  Your lack of integrity has caused doubts as to your ability to carry out the responsibilities as Company Police Sergeant.  Reassignment within H&S Co. will be initiated because of lack of confidence in your ability to perform as Company Police Sergeant]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

970718:	NJP for violation of UCMJ, Article 92: Did on or about 0700, 970706, fail to obey a lawful order given by Capt E____, an order which it was his duty to obey, to wit: failing to sign in for Company restriction, violation of UCMJ Article 92: Did on or about 0700, 970707, fail to obey a lawful order given by Capt E____, an order which it was his duty to obey, to wit: failing to sign in for Company restriction.
	Award:  Forfeiture of $598.00 per month for 1 month (suspended for 6 months), restriction and extra duty for 15 days, reduction to E-3.  Not appealed.

970721:	Counseled for deficiencies in performance and conduct.  [SNM's recent violation of the UCMJ, two counts of Article 92 have been adjudicated at Battalion NJP.  SNM failed to obey the Company Commander by missing two restriction musters.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

970808:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

970808:  	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

970813:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.  The factual basis for this recommendation was your counseling entries for under age consumption of alcohol, extreme abuse of alcohol, disobeying a lawful order, failure to be at appointed place of duty, and your two Non-Judicial Punishments for unauthorized, false official statement, and disobeying a lawful order. 

970929:	SJA review determined the case sufficient in law and fact 

970930:	GCMCA [CG, 1st MARDIV] 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 971008 under other than honorable conditions for misconduct due to a pattern of misconduct (A).  The Board presumed regularity in the conduct of governmental affairs (B).  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was not proper and grants partial relief (C and D).

The applicant had 2 counseling entries and 2 NJP’s. The Board felt that these infractions were serious enough to warrant separation, but were not serious enough to warrant an other than honorable separation. However, the Board felt that his service was not honorable because of these disciplinary infractions (issues 1 and 2).  Partial relief granted.
  
The applicant’s representative submitted the following as issue 3: (EQUITY ISSUE) This former member further requests that the Board include provisions of SECNAVINST 5420.174C., enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of his application.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge (B, Part IV).  However, 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 the civilian life subsequent to leaving the service.  Normally, to permit relief, an error or injustice must have been found to have existed during the period of enlistment in question.  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.  The applicant should produce evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs in order for consideration for clemency based on post-service conduct.  At this time the applicant has not provided any documentation of good character and conduct.  Therefore only partial relief will be granted  He is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge.  

Pertinent Regulation/Law (at time of discharge)

A.  Paragraph 6210, MISCONDUCT, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 18 Aug 95 until Present. 

B.  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.  

C.  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.

D.  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