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Docket No. MD05-01147

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

FOR OFFICIAL USE ONLY

ex-PVT, USMC
Docket No. MD05-01147

Applicant’s Request

The application for discharge review was received on 20050701.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record discharge review.  The Applicant did not designate a representative on the DD Form 293.  

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060504.  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 by reason of misconduct due to minor disciplinary infractions.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application to the Board:

“Discharge was inequitable because it was based on:  Minor disciplinary infraction.  These infractions happen at a young age.  Now I realize such a stupid mistake was not a great decision.  I would like to change my discharge characterization as so it will not follow me for life.”

Documentation

Only the service record book was reviewed.  The Applicant did not provide additional documentation for the Board’s consideration.

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	19941007 – 19950807		COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19950808		Date of Discharge:  19970124

Length of Service (years, months, days):

Active:    01  05  17  
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  17 (Parental Consent)

Years Contracted:  4 

Education Level:  12				AFQT:  54

Highest Rank:  PFC				MOS: 6053

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.0 (5)				Conduct:  3.7 (5) 

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  National Defense Medal; Rifle Expert Badge.

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  MARCORSEPMAN Par. 6210.2.

Chronological Listing of Significant Service Events:

960426:	Counseling:  Advised of deficiencies in performance and conduct (Financial irresponsibilities, lackadaisical attitude, and lack of attention to detail, i.e. accumulating bills which can not be paid on a timely manner, minimum preparation for uniform inspection, late for the uniform inspection, did not correct the uniform discrepancies when told to do so by the SNCO, reported late to your SNCO after being told twice to correct uniform discrepancies.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

960426:	Acknowledged understanding of being of eligible but not recommended for promotion to LCpl for the month of May 96 because of my recent counseling entry dated 960426.  Applicant chose not to make a statement.

960620:	Acknowledged understanding of being eligible but not recommended for promotion to LCpl for the month of June 96 because of my failure to show improvement on previous counseling entry dated 960426.  Applicant chose not to make a statement.

960701:	Acknowledged understanding of being eligible but not recommended for promotion to LCpl for the month of July 96 because of my failure to show improvement on previous counseling entry dated 960426.  Applicant chose not to make a statement.

960715:	Acknowledged understanding of being eligible but not recommended for promotion to LCpl for the month of August 96 because of failure to show improvement on previous counseling’s.  Applicant chose not to make a statement.

960806:	Counseling:  Advised of deficiencies in performance and conduct (Lackadaisical attitude, lack of attention to detail, not at appointed place of duty.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

960812:	NJP for violation of UCMJ, Article 86:  UA (AWOL) from 0731, 960807 to 1035, 960807.  
Award:  Forfeiture of $437.00 pay per month for 1 month, restriction and extra duty for 45 days, reduction to E-1 (suspended for 2 months).  Not appealed.

960812:	Acknowledged understanding of being eligible but not recommended for promotion to LCpl for the months September and October 1996 because of recent NJP suspended punishment.  Applicant chose not to make a statement.

960916:	NJP imposed and suspended on 960812 for a period of 2 month vacated and punishment ordered executed.

961004:	NJP for violation of UCMJ, Article 121:  On or about 0200, 960831, did steal a shirt, the property of LCpl D_ S. W_, from the laundry room at Bks 4199, MCAS CPNC.
	Violation of UCMJ, Article 86: UA from VMAQ-1, MAG-14, 2d MAW on or about 0048, 960912 while on restriction.
Violation of UCMJ, Article 92: On or about 0048, 960912 did violate AbaseO P560.3B by operating a motor vehicle while under a suspended state drivers license (NC); On or about 0130, 960922 did violate AbaseO 1746.2A par 5I by drinking alcoholic beverages while under the age of 21; On or about 0130, 960922 failed to obey a direct order of Commanding Officer VMAQ-1 by drinking alcoholic beverages while on restriction; Failed to obey a direct order of the Commanding Officer VMAQ-1 by reporting for restriction in civilian attire.
Violation of UCMJ, Article 134:  Did break restriction on or about 0048, 960912, by driving outside the limits of his restriction; On or about 0130, 960922 did make a disloyal statement to Cpl V_ C_ (VMAQ-1) by stating that he was “21 years old” when questioned about drinking beer; Did break restriction on or about 0700, 960922 by failing to report to the SDO of VMAQ-1.
	Award:  Forfeiture of $437.00 pay per month for 2 months and 30 days Correctional Custody.  Not appealed.

961118:	NJP for violation of UCMJ, Article 86:  UA (AWOL) from 0730, 961115 to 0800, 961115.
Award:  Restriction and extra duty for 45 days.  Not appealed.

961205:	Ltr from Director, Substance Abuse Counseling Center,  states Applicant was medically evaluated by Dr. E. E. B_ LT/MC/USNR on 20 Nov 96.  The resulting diagnosis was alcohol dependence.  The Applicant was recommended to be assigned to the next available Level III Inpatient treatment program.

961212:	Ltr from E_ L. C_ (Applicant), acknowledges he has been diagnosed as alcohol dependent and has been offered treatment for his alcohol dependency, but declines treatment.  He understands that his refusal to accept treatment is grounds for discharge from the Marine Corps.

961223:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of alcohol rehabilitation failure and misconduct due to minor disciplinary infractions.  The factual basis for this recommendation was the Applicant’s refusal of Level III treatment, and the in-service nonjudicial punishments and the adverse page 11 entries in the Applicant’s service record book.  Applicant informed the least favorable character of service possible is under other than honorable conditions.

xxxxxx:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation. [undated]

961223:	Commanding Officer, Marine Tactical Electronic Warfare, Squadron 1 recommended that the Applicant be discharged under other than honorable conditions by reason of alcohol rehabilitation failure and misconduct due to minor disciplinary infractions.  

970114:	SJA review determined the case sufficient in law and fact.

970114:	Commanding Officer, 2d Marine Aircraft Wing, directed the Applicant’s discharge under other than honorable conditions by reason of alcohol rehabilitation failure and misconduct due to minor disciplinary infractions.  Misconduct due to minor disciplinary infractions is directed as the primary reason for separation.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19970124 by reason of misconduct due to minor disciplinary infractions (A and B) with a service characterization of under other than honorable conditions.  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 (C and D).  

When a Marine’s service has been honest and faithful, it is appropriate to characterize that service as honorable.  An under other than honorable conditions discharge 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 two retention warnings and three nonjudicial punishment proceedings for violations of Articles 86, 92, 121 and 134 of the UCMJ.  The Applicant’s nonjudicial punishment proceedings on 19961004 included the adjudication of four specifications of violating Article 92 of the UCMJ.  Violations of Article 92 are considered serious offenses.  The Applicant’s partially suspended award at nonjudicial punishment on 19960812 was vacated on 19960916 due to the Applicant’s continued misconduct.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the Marine Corps and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

The Applicant states his discharge was inequitable because it was based on “Minor disciplinary infraction.”  Reference (A) indicates that any Marine offered Level III treatment will be processed for separation if they refuse to attend Level III.  Reference (A) also indicates that processing a Marine for separation by reason of misconduct is appropriate when the Marine meets the criteria for discharge due to misconduct unless rehabilitation and retention are warranted.  The Applicant met the criteria for discharge by reason of alcohol rehabilitation failure and by reason of misconduct due to minor disciplinary infractions.  There is no evidence in the record that the Applicant was a candidate for rehabilitation and retention.  Relief denied.

The Applicant implies that his discharge is inequitable because his “infractions happen[ed] at a young age.”  While he may feel that his immaturity was the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service.  The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

The following is provided for the edification of the Applicant.  Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no impropriety after a review of Applicant’s case.  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 Naval service.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  As of this time, the Applicant has not provided any post-service documentation for the Board to consider.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  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.  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 18 Aug 95until 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 92, failure to obey order/regulation.
	
C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

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 “http://Boards.law.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:

		Secretary of the Navy 	Council of Review Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023