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Docket No. MD01-01200

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

 ex-LCpl, USMC
Docket No. MD01-01200

Applicant’s Request

The application for discharge review, received 010924, requested that the characterization of service on the discharge be changed to honorable.  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 020417.  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/MISCONDUCT, authority:  MARCORSEPMAN Par. 6210.6.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  I freely admit that the reoccurrences of alcohol related incidents were entirely of my own volition.  I deeply regret them, and accept full responsibility.  Since being separated from the Marine Corps, I have had no alcohol related incidents, and additionally do not consume alcohol whatsoever. I would also like to have my reenlistment code changed to RE 1 or 3. Thank you for your time and consideration of this matter.

Documentation

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

Statement from applicant
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		910716 - 950426	HON
	Inactive: USMCR(J)		900718 - 910715	COG

Period of Service Under Review:

Date of Enlistment:  950427		Date of Discharge:  951207

Length of Service (years, months, days):

	Active:    00  07  11
	Inactive:  None

Age at Entry:  22			Years Contracted:  4

Education Level:  12			AFQT:  41

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.7 (2)			Conduct:  2.7 (2)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR with 1 Star, GCM

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. 6210.6.

Chronological Listing of Significant Service Events:

950608:	NJP for violation of UCMJ, Article 90:
Specification: Disobey a direct order from Captain on 10May95.
Violation of UCMJ, Article 134:
Specification: Public intoxicated on 23May95.
Awarded forfeiture of $545.00 per month for 2 months, restriction and extra duties for 45 days, reduction to LCpl.  Forfeiture of $545.00 for 2 months suspended for 6 months.  Not appealed.

950629:	Counseled for deficiencies in performance and conduct.  [Being convicted of a civil offense, and being placed on civilian probation for 1 year.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

950629:	Applicant evaluated by a substance abuse counselor and was found to be alcohol dependent.  Applicant is a Level III treatment failure.

950718:	Counseled for deficiencies in performance and conduct.  [Continued misconduct, involvement with civilian authorities and minor infractions of the UCMJ.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  

950812:	Applicant arrested by San Bernardino County Sheriff's Department for spouse beating.  Applicant scheduled to appear in Municipal Court on 6Sep95.

950913:	Vacate suspended of forfeiture imposed on 8 June 95.

950913:	NJP for violation of UCMJ, Article 90 (2 specs):
Specification 1: Disobey a direct order from Major on 12Aug95.
Specification 2: Disobey a direct order from Major on 4Sep95.
Awarded restriction and extra duties for 45 days.  Not appealed.

950909:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of alcohol rehabilitation failure and misconduct due to the commission of a serious offense.

950911:	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

951024:	Commanding officer recommended discharge under other than honorable conditions by reason of alcohol rehabilitation failure and misconduct due to the commission of a serious offense.  The factual basis for this recommendation was your arrest for drunk and disorderly on 23 May 1995 and your arrest for felony injury to cohabitant on 12 August 1995.  

951204:	SJA review determined the case sufficient in law and fact.

951206:	GCMCA [Commanding General, 1^st Force Service Support Group] directed the applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 951207 under other than honorable conditions for misconduct due to the commission of a serious offense (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.  Concerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces.

When a Marine’s service has been honest and faithful, it is appropriate to characterize that service as honorable.  A characterization of service of under other than honorable conditions 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 award of nonjudicial punishment (NJP) for offenses triable by court-martial on two occasions, adverse counseling entries on other occasions, and the commission of a serious offense evidenced by his civilian arrest for spousal abuse.  A civilian or military conviction is not required to substantiate the commission of a serious offense.  The applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful disobedience of the orders and directives which regulate good order and discipline in naval service, and falls short of that required for an honorable characterization of service.  An upgrade to honorable would be inappropriate.  It must be noted that most Marines serve honorably and well and therefore earn honorable discharges.   In fairness to those Marines, commanders and separation authorities are tasked to ensure that undeserving Marines receive no higher characterization than is due. Relief denied.

The Board found that the applicant’s age, education level, and test scores qualified him for enlistment.  While he may feel that the alleged lack of counseling and lack of repeated alcohol rehabilitation treatment were factors that contributed to his actions, the record clearly reflects his willful disregard for the requirements of military discipline and demonstrated that he was unfit for further service.  The record is devoid of evidence that the applicant was not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.

The applicant’s discharge characterization accurately reflects his service to his country.  The Board discerned no inequity or impropriety in the applicant’s discharge proceedings.  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, maintaining sobriety, 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 6210, MISCONDUCT of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 18 Aug 95 until 30 Jan 97). 

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 90, disobeying a lawful order of a commissioned officer; Article 128, assault; Article 134, public intoxification.

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/A9317/A9241/A9217/A9223/A9221