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

Docket No. MD02-00562

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

ex-PFC, USMC
Docket No. MD02-00562

Applicant’s Request

The application for discharge review, received 020312, 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 021217.  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-Pattern of misconduct (administrative discharge board required but waived), authority: MARCORSEPMAN Par. 6210.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  I wish to upgrade my discharge from "Under other than Honorable conditions", to "General under Honorable conditions."

Please see attached letter.

In addition to the attached letter, please consider the following:

I was formally notified in the "Notification of Separation Proceedings" letter dated 7 Apr 1992, that the least Favorable characterization of discharge I would receive would be Under Honorable Conditions (General).  I believed that to have been the character of discharge I received and only recently realized I was issued a discharge Under Other Than Honorable Conditions.  This character of discharge violates the promise I was afforded in writing and subsequently agreed to accept.

Documentation

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

Statement from Applicant dated December 16, 2001
Copy of DD Form 214
Thirty-one pages from Applicant's service record

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		880629 - 881113	COG

Period of Service Under Review:

Date of Enlistment:  881114		Date of Discharge:  920916

Length of Service (years, months, days):

	Active:    03  10  03
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  31

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.5 (13)		Conduct:  4.0 (13)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, NUC, KLM, Certificate of Appreciation, Meritorious Mast, SASM with 2 Stars

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – Pattern of misconduct (administrative discharge board required but waived), authority:  MARCORSEPMAN Par. 6210.3.

Chronological Listing of Significant Service Events:

900205:	Counseled for deficiencies in performance and conduct.  [Alcohol related incident on 900114, DWI (BAC.10).]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

900206:	NJP for violation of UCMJ, Article 92:
Specification: Consuming alcohol under legal age of 21 and consuming alcohol in barracks in violation of BnO P11101.1.
Awarded forfeiture of $405.00 per month for 1 month, restriction and extra duties for 45 days, reduction to PFC.  Reduction suspended for 6 months.  Not appealed.

900618:	Counseled for deficiencies in performance and conduct.  [Conviction in civilian court for a DUI with a BAC of .10 on 900613.  As a result of this SNM cannot perform in his MOS as a Motor Vehicle Operator which puts a burden on his section.  Fined $113.00, one year loss of driving privileges and must attend alcohol classes.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

900712:	Counseled for deficiencies in performance and conduct.  [Using poor judgment.  After completing Level III while in a liberty status he became extremely intoxicated from alcohol and his unsatisfactory conduct resulted in an altercation which made him medically incapable of performing his duties.  Also consumed alcohol under the legal age of 21.  Not adhering to after care program which is a direct reflection on his failure to follow rules and regulations.  His unsatisfactory conduct & judgment now jeopardize his future in the Marine Corps and are unacceptable.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

900727:	NJP for violation of UCMJ, Article 92:
Specification: Violation of a North Carolina state law by consuming alcohol under the legal age of 21.
Awarded restriction and extra duties for 7 days.  Not appealed.

900806:	Vacate suspended reduction to PFC awarded at CO's NJP 900202.

910730:	NJP for violation of UCMJ, Article 86:
Specification: Unauthorized absence 0700-1330, 8 Jul 91.
Violation of UCMJ, Article 92:
Specification: Driving on State/Base revocation on 1115, 11 Jun 91.
Awarded forfeiture of $216.00 per month for 1 month, restriction and extra duties for 14 days.  Not appealed.

911127:	Consolidated Substance Abuse Counseling Center: Impression: Alcohol dependent in relapse.  Recommendations: Level III aftercare, 2-3 AA meetings weekly, get a sponsor, 250 mg antabuse daily to be monitored after MO evaluation.

920318:	NJP for violation of UCMJ, Article 92:
Specification: Failure to obey lawful order issued by Lt, to wit: Para 2, Sec 4, Letter of Instruction 5355.2/00, dated 920131 by wrongfully having in his possession an open container of unspecified alcoholic beverage on 2230, 2 Mar 92.
Awarded forfeiture of $234.00 per month for 1 month, restriction and extra duties for 14 days.  Not appealed.

920514:	NJP for violation of UCMJ, Article 86:
Specification: Absence from place of duty on 0900-1200, 18 Apr 92, to wit: 3d Medical Battalion Gas Camber detail.
Awarded reduction to PFC.  Not appealed.

920729:	Applicant advised of rights and having consulted 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.

920731:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

920731:	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 Applicant’s failure to conform to the standards of the Marine Corps.  He received five nonjudicial punishments and was counseled concerning his deficiencies as evidenced by his service record.  His response has been further violations of the UCMJ.  By his actions and inability to respond to counseling, he demonstrated that he has no potential for further honorable service. 

920818:	SJA review determined the case sufficient in law and fact.

920821:	GCMCA [Commanding General, 3d Force Service Support Group] 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 920916 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 found that the Applicant was properly notified of the intended 
recommendation for discharge under other than honorable conditions by reason of 
misconduct due to a pattern of misconduct in July, 1992.  During the same month, the 
Applicant was advised of his rights and having consulted 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.  Therefore, the Board considers the Applicant’s issue that he was processed for discharge under honorable conditions in April, 1992 to be without merit.  The Board found the latter notification of separation proceedings took precedence over any earlier notification.  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 the naval service, and falls short of that required for an honorable characterization of service.  The Applicant, after consulting with legal counsel, waived his right to contest the characterization of service at an administrative hearing while being processed for discharge in July, 1992.  Under other than honorable conditions most clearly describes the Applicant’s characterization of service.  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 inequity must have existed during the period of enlistment in question.  No such error or inequity 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.  Relief not warranted.

The Applicant 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.  Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

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

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; Article 92, failure to obey a lawful general order.

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

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:  A6710/A9401/A0103/A0139/A0209/A9217/A9221