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Docket No. MD03-01181

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

 ex-Pvt, USMC
Docket No. MD03-01181

Applicant’s Request

The application for discharge review was received on 20030626.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record 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 20040423.  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/MISCONDUCT, authority: MARCORSEPMAN Par. 6210.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

No issues were submitted by the Applicant. 

Documentation

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

Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None
	Inactive: USMCR(J)		971024 - 971116	COG

Period of Service Under Review:

Date of Enlistment:  971117		Date of Discharge:  990602

Length of Service (years, months, days):

	Active:    01 06 16
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  51

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.6 (5)			Conduct:  3.2 (5)

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR

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:

980902:	NJP for violation of UCMJ, Article 112a (1 spec):
Specification 1:  At Marine Corps Engineer School, Camp Lejeune, NC, on or about 8 June 98, wrongfully use a controlled substance, to wit: by testing positive for THC on a urinalysis confirmed by MSG R 122358Z June 98.
Awarded red to Pvt/E-1, forfeiture of $463.00 per month for 2 months, restriction and extra duties for 45 days.  Not appealed.

981014:	Counseled for deficiencies in performance and conduct.  [Consuming Alcohol while on Battalion Commander’s Restriction.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

981015:	NJP for violation of UCMJ, Article 92 (1 spec):
Specification 1:  On or about 2200, 981003, fail to obey a lawful general order; to wit: by consuming alcoholic beverages while assigned to Battalion Commander’s Restriction.
Awarded forfeiture of $463.00 per month for 1 months, restriction and extra duties for 30 days.  Not appealed.	

981117:	NJP for violation of UCMJ, Article 86 (2 specs):
Specification 1:  At Okinawa, Japan, on or about 0800, 6 Nov 98, fail to go to his appointed place of duty on time, to wit: ARD, Camp Lester.
Specification 2:  At Okinawa, Japan, on or about 0800, 6 Nov 98, fail to obey a lawful general order, to wit:  attend and complete an Alcohol Impact Class from 2-6 Nov 98 as ordered by CSACC.
NJP for Violation of UCMJ, Article 92 (1 spec):
Specification 1:  Dereliction in the performance of your ARD, Camp Lester duty by willfully, through negligence, not attending your Alcohol Impact Class on 6 Nov 98.
Awarded forfeiture of $463.00 per month for 2 months, restriction and extra duties for 45 days.  Not appealed.

981120:	Counseled for deficiencies in performance and conduct.  [Illegal drug involvement THC usage identified through urinalysis confirmed by Nav Drug JAXFL msg R 182358Z June98.]  Necessary corrective actions explained.

990204:	Summary Court-Martial.
	Charge I:  Violation of the UCMJ, Article 134.
	Specification:  In that Private T_ H_, USMC, having been restricted to the limits of Bks 2441, assigned area of mess, place of worship and place of duty, by a person authorized to do so, did, at Camp Hansen, Oki, JA, on or about 06 Dec 98, break said restriction.
	Charge II:  Violation of the UCMJ, Article 92
	Specification:  In that Private T_ H_, USMC, having knowledge of a lawful order issued by LtCol R_ O_, to wit: Battalion Restriction, dtd 17 Dec 98, an order which it was his duty to obey, did, at Camp Hansen, Oki, JA, on or about 30 Dec 98, fail to obey the same by wrongfully consuming alcoholic beverages.
	Finding:  To Charge I and the specification thereunder, guilty. To Charge II and the specification thereunder, guilty.
	Sentence:  Forfeiture of $638.00, and 30 days confinement.
		CA action 990211:  Sentence approved and ordered executed.

990303:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by the Applicant’s wrongful use of illegal drugs and subsequent misconduct which resulted in three Non-judicial Punishments and  a Summary Court Martial.

990303:	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.

990303:	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 the Applicant’s wrongful use of illegal drugs and continuous misconduct since his Non-judical Punishment.” 

990401:	SJA review determined the case sufficient in law and fact.

990406:	GCMCA [CG, 3d FSSG] 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 19990602 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).

The Applicant introduced no decisional issues for consideration by the Board.

The Applicant's other than honorable discharge was proper and equitable.  The NDRB, under its responsibility to examine the propriety and equity of an Applicant's discharge, will change the reason for discharge if such a change is warranted.  There is no evidence of impropriety, inequity or procedural irregularities in the Applicant's discharge.  The Applicant's misconduct is clearly documented.   He acknowledged and waived his rights to administrative review.  He was notified that by waiving his rights and accepting an other than honorable discharge, he could possibly encounter significant difficulties in obtaining employment and other benefits.  The Applicant was afforded the appropriate due process during the processing of his case.  An upgrade of the Applicant's discharge to an honorable characterization is not warranted.  Relief denied.

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 6210, MISCONDUCT, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 31 Jan 97 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

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.
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