Author: CAP
Last saved by: Department of the Navy
Company: NCPB

Docket No. MD01-01186

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

 ex-LCpl, USMC
Docket No. MD01-01186

Applicant’s Request

The application for discharge review, received 010917, requested that the characterization of service on the discharge be changed to general/under honorable conditions.  The applicant requested a documentary record discharge review.  The applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020620.  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 not change.  The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/INVOL DIS (BOARD) (PATTERN OF MISCONDUCT), authority: MARCORSEPMAN Par. 6210.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

Prior to the documentary discharge review, the applicant introduced no issues as block 8 on the DD Form 293 is blank. 

Documentation

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

Statement from applicant dated August 25, 2001

PART II - SUMMARY OF SERVICE

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

	Active:   ARNG		891031 - 900321	IADT
	Inactive: USMCR(J)		900727 - 900909	COG

Period of Service Under Review:

Date of Enlistment:  900910		Date of Discharge:  941005

Length of Service (years, months, days):

	Active:    04  00  26
	Inactive:  None

Age at Entry:  23			Years Contracted:  4

Education Level:  12			AFQT:  31

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.0 (9)			Conduct:  3.8 (9)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, Letter of Appreciation, MUC

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/INVOL DIS (BOARD) (PATTERN OF MISCONDUCT), authority:  MARCORSEPMAN Par. 6210.3.

Chronological Listing of Significant Service Events:

910129:	NJP for violation of UCMJ, Article 92:
Specification: Disobey a lawful order from GySgt.
Violation of UCMJ, Article 128:
Specification: Assault, to wit: choke PFC from behind.
Awarded forfeiture of $175.00 per month for 1 month, restriction and extra duties for 14 days.  Not appealed.

910226:	Applicant informed eligible but not recommended for promotion to PFC for the months of March 1991 due to recent NJP.

910830:	Applicant to alcohol rehabilitation department.  Diagnosis: 1. Alcohol dependence.  2.  Alcohol rehabilitation.

911010:	Applicant discharged from alcohol rehabilitation department with an aftercare plan.

920129:	Applicant released from Consolidated Substance Abuse Control Center Level III aftercare group as an unsuccessful completion due to lack of attendance.

920805:	Applicant informed eligible but not recommended for promotion to Cpl for the month of August due to inability to follow daily instructions and frequent lack of initiative, enthusiasm and responsibility.

920824:	Applicant informed eligible but not recommended for promotion to Cpl for the month of September due to inability to follow daily instructions, frequent lack of initiative, enthusiasm and responsibility.

920918:	Applicant informed eligible but not recommended for promotion to Cpl for the month of October due to lack of leadership.

921020:	Applicant informed eligible but not recommended for promotion to Cpl for the month of November due to lack of leadership.

921218:	Counseled for deficiencies in performance and conduct.  [Pattern of misconduct - frequent involvement with civilian authorities and alcohol incidents, caused discredit to yourself and the United States Marine Corps.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

921221:	Applicant informed eligible but not recommended for promotion to Cpl for the month of January due to lack of leadership.

930317:	Counseled for deficiencies in performance and conduct.  [Failure to adhere to the rules and regulations, resulting in involvement with the military and civilian authorities.  While a member of Bn guard, you were administered a Fit for Duty test and failed as unfit for duty due to intoxication.  Although you have completed Level I on 910429, Level 2 on 910606 (incomplete due to intoxication), and level 3 on 911011, your actions constitute a pattern of misconduct.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

930318:	Applicant informed eligible but not recommended for promotion to Cpl for the Apr-Jun93 promotion quarter due to lack of initiative, motivation and desire to perform the duties o a NCO.

930628:	NJP for violation of UCMJ, Article 86:
Specification: Absent from appointed place of duty from 0630-0650, 16Jun93, to wit: Bn working party.
Awarded forfeiture of $243.00 per month for 1 month, restriction and extra duties for 14 days.  Not appealed.

930820:	Medical record: A: R/O intoxication/unfit for duty.  Unfit for duty due to ETOH consumption - medically stable.  P: Detox, Return to barracks, confined to barracks.  Return to Level III.

930827:	NJP for violation of UCMJ, Article 134:
Specification: Incapacitated for the proper performance of duty on 0710, 20Aug93, as a result of previous overindulgence in intoxicating liquor.
Awarded forfeiture of $456.00 per month for 2 months, reduction to PFC.  Forfeiture and reduction suspended for 6 months.  Not appealed.

930921:	Counselor Assessment: Alcohol/Drug dependency.  Recommendation: Initiate administrative separation.

931111:	Applicant arrested for indecent exposure, public intoxication and urinating in public.  No further information found in service record.

940208:	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 failure to conform to the standards of the Marine Corps.  On 910129 your received Company Level nonjudicial punishment for violation of Articles 92 and 128, Uniform Code of Military Justice; disobeyed a lawful order from GySgt B_ and choked PFC A_. On 930628 you received Company Level nonjudicial punishment for violation of Article 86, Uniform Code of Military Justice: UA from appointed place of duty from 0630 - 0650 930616.  On 930827, you received Battalion Level nonjudicial punishment for violation of Article 134, Uniform Code of Military Justice on 0710, 930820, as a result of previous overindulgence in intoxicating liquor, was incapacitated for the proper performance of your duties.  On 11 March 1994 you were counseled for lack of judgement concerning your indecent exposure, public intoxication, urinating in public and failure to appear in court. 

940311:	Counseled for deficiencies in performance and conduct.  [Lack of judgement concerning your indecent exposure, public intoxication, urinating in public and failure to appear in court.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

940404:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of alcohol rehabilitation failure and misconduct due to a pattern of misconduct.

940406:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

940426:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed misconduct due to a pattern of misconduct and alcohol rehabilitation failure, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

940713:	SJA review determined the case sufficient in law and fact.

940714:	GCMCA [Commanding General, 1^st Marine Division (Rein) FMF] directed the applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.  CG directed applicant complete VA substance abuse treatment and effect separation after treatment is completed.

940829:	 Applicant requested to be enrolled in VA hospital/facility Drug and Alcohol Rehabilitation Program in conjunction with discharge.  Applicant agreed to stay in program for 30 days.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 941005 under other than honorable conditions for misconduct due to a pattern of misconduct (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).

Issue 1. The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities as requested in the applicant’s letter to the Board.  The Board’s charter limits its review to a determination on the propriety and equity of the discharge.  In the applicant’s case the Board could discern no impropriety or inequity and therefore considered the applicant’s discharge was proper and equitable.  The Board found that the applicant’s problem with alcohol does not mitigate his misconduct sufficient to warrant an upgrade to his discharge.  Relief denied.

The applicant’s discharge characterization accurately reflects his service to his country.  The discharge was proper and equitable.  Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  No such error or injustice occurred during the applicant’s enlistment.  Additionally, 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 civilian life, subsequent to leaving the service.  However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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.  Verifiable proof of any post-service accomplishments must be provided in order for the applicant to claim post-service conduct and behavior as a reason to upgrade a less than Honorable discharge.  Evidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs, are examples of verifiable documents that should have been provided to receive consideration for relief, based on post-service conduct.  The applicant did not provide sufficient documentation to warrant an upgrade to his discharge.  He is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge.  The applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  Legal representation at a personal appearance hearing is highly recommended but not required.  Relief denied.

Pertinent Regulation/Law (at time of discharge)

A.  Paragraph 1004, Characterization of Service, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16D), effective 27 Jun 89 until 17 Aug 95.

B. Paragraph 6210, Misconduct, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16D), effective 27 Jun 89 until 17 Aug 95. 

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 “afls10.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

The remaining portion of this document is divided into 4 Parts: Part I - Applicant’s Issues and Documentation, Part II - Summary of Service, Part III – Rationale for Decision and Pertinent Regulation/Law, Part IV - Information for the Applicant.
INDEX:  A6730/A0100/A9500/A9217/A9221