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Docket No. MD03-01404

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

, ex-Pvt, USMC
Docket No. MD03-01404

Applicant’s Request

The application for discharge review was received on 20030820.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions.  The Applicant requests 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 20040526.  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

Applicant’s issues, as stated on the application:

1.  “April 14 1999 to Oct 12, 1999, I participated in Operations Shining Hope Joint Guardian, Avid Response, and exercise Atlas Hinge.  My duty positively impacted the overall success of each mission.  I put in 110% everyday.  I have 7 Ribbons 2 medals Kosovo Campaign, Armed forces service medal, Kosovo Campaign with 2 Stars. and Navy Unit Commendation.  During this period Service records show that I injured my Left leg/knee during service in 1999.  Befor deployment.  I continued to have problems during and After deployment.  I pushed my self hard to see that my Job and Mission was compleat.  Soon after deployment 2000, I underwent surgery at a private facility, shown as a torn hamstring of the Left leg/knee.  I think my character of service should at least read: General under Honorable conditions I feel my discharge is inconsistent with the standards of discipline.”

The Applicant indicated he had additional issues, but none were found.

Documentation

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

Copy of DD Form 214
DVA letter
Letter of Appreciation
VA Form 21-22

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		971031 - 971111	COG

Period of Service Under Review:

Date of Enlistment:  971112		Date of Discharge:  001006

Length of Service (years, months, days):

	Active:    02  10  25
	Inactive:  None

Age at Entry:  20			Years Contracted:  4 

Education Level:  12			AFQT:  53

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.6 (7)			Conduct:  2.8 (7)

Military Decorations:  None

Unit/Campaign/Service Awards:  NUC

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:

980806:	NJP for violation of UCMJ, Article 92: Violate BO1700.6H by wrongfully drinking under the age of 21; violation of UCMJ, Article 111: Drive while impaired aboard CLNC.
Awarded forfeiture of $463.00, restriction and extra duties for 45 days, reduction to Pvt.  Not appealed.

980806:	Counseled for deficiencies in performance and conduct.  [Operate a motor vehicle with a BAC of 0.16 on Holcomb Blvd., CLNC.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

981109:	Counseled for deficiencies in performance and conduct.  [Disorderly conduct, drunkenness.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

990422:	NJP for violation of UCMJ, Article 112: On 990326, drunk on duty.
Awarded forfeiture of $479.00 per month for 2 months (suspended for 6 months), reduction to Pvt.  Not appealed.

990512:	Counseled for deficiencies in performance and conduct.  [Continued pattern of misconduct.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

990722:	NJP for violation of UCMJ, Article 92: Violate Liberty Risk Program by consuming alcohol while in a class “A” status and by failing to remain on the USS Kearsarge after 2200.
Awarded forfeiture of $479.00 for 2 months, restriction and extra duties for 45 days (restriction and extra duties suspended for 6 months).  Not appealed.

990729:	Applicant diagnosed as alcohol dependent at U.S. Naval Hospital, Rota, Spain.

000031:	Applicant acknowledged eligibility for VA substance abuse treatment in conjunction with discharge.

000210:	Summary Court-Martial.
Violation of UCMJ, Article 86 (2 specs):
Specification 1: On 0600, 991230 fail to be present for inspection.
Specification 2: UA from 0700, 000112 to 0900, 000112.
Finding: Guilty to charge and specifications.
Sentence: Forfeiture of $670.00.
CA 000229: Approved and ordered executed. 

000224:	Counseled for deficiencies in performance and conduct.  [Arrested for DUI and driving without a valid license.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

000301:	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 service record, and the comments of your peers.

000301:	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.

000303:	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 six incidents of alcohol abuse and absence without leave.
  
000918:	SJA review determined the case sufficient in law and fact.

000920:	GCMCA [CG, 2d 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 20001006 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.  A characterization of service of under other than honorable conditions is warranted when the member's conduct constitutes a significant departure from that expected of a Marine.  The Applicant’s service was marred by award of nonjudicial punishment (NJP) on three occasions, one summary court-martial and adverse counseling entries on other occasions.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for an upgrade to his characterization of service.  The Applicant’s record of deployments and injuries do not mitigate his misconduct.  The evidence of record does not demonstrate 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 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 is evident 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 P1900.16E), 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; Article 92, disobey a lawful order; Article 111, drunk driving; and Article 112, drunk on duty.

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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