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Docket No. MD05-01461

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

FOR OFFICIAL USE ONLY

 ex-Pvt, USMC
Docket No. MD05-01461

Applicant’s Request

The application for discharge review was received on 20050901.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable and that the narrative reason be to “Convenience of The Government.”  The Applicant requests a documentary record discharge review.  The Applicant designated the Disabled American Veterans as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060601.  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 and reason for discharge shall not change.  The discharge shall remain Under Other Than Honorable Conditions by reason of misconduct due to a pattern of misconduct.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“Due to numerous changes and inconsistencies with the timeliness of the package, Also the proficiency/conduct marks do not support the recommendation of the Discharge.  The proficiency/conduct marks do no support the Discharge Boards recommendation for An other Than Honorable discharge.

Additional issues submitted by Applicant’s representative (Disabled American Veterans):

“Dear Chairperson:

After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of evidence assembled for review, we continue to note the contention of the appellant in his request for a discharge upgrade of his current Under Other Than Honorable (OTH) Conditions discharge to Honorable.

The FSM served on active service from February 13, 2001 to February 12, 2005 at which time he was discharged due to Misconduct. 

The FSM contends the current discharge is improper because the evidence does not support this harsh of a discharge. There were numerous changes and inconsistencies with the timeliness of the discharge packet, and also that his proficiency and conduct marks do not support the recommendation of this harsh a discharge.

In support the FSM submits a copy of a letter sent from the Commanding Officer, MAC Group 28, dated January 20, 2005, addressed to the Commanding General 2d Marine Aircraft Wing (JLC). In the letter the FSM’s Commanding Officer addresses the fact that the current OTH discharge is not supported by the service marks. FSM Seymour’s service marks were 4.4 / 4.3. Further noting that the FSM served honorably on deployments with the 31^st MEU and MACS-2, and that his troubles are not indicative of his service.  That the FSM has an alcohol problem that has not been properly addressed.

In addition to this the Commanding Officer made a recommendation that a General Under Honorable Conditions discharge be allowed at discharge due to service marks and numerous problems with the development of the packet.

This creates a need for a review of the application of the standard, for the Board to determine that the Applicant’s discharge was improper. The Board will determine which reason for discharge should have been assigned based upon the facts and circumstances before the Board, including the service regulations governing the reasons for discharge at that time, to determine whether relief is warranted. See, SECNAVIST 5420.174 D, Sect. 407, part 3.

As the representative, we ask that consideration be given to equitable relief, as this is a matter that involves a determination whether a discharge should be changed under the equity standards, to include any issue upon which the Applicant submits to the Board’s discretionary authority, under SECNAVIST 5420.174D.

Under the premises of equitable relief, we believe the Board can change the narrative reason to Convenience Of The Government, removing the notation of conduct. As to the request of the change of discharge to reflect a General discharge we leave that to a determination by the Board, but believe there is enough justification based on evidentiary review to provided equitable relief and grant at least a General Under Honorable Conditions discharge.

We ask for the Board’s careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision.  These issues do not supersede any issues previously submitted by the Applicant.”

Applicant’s Remarks:  (Taken from the DD Form 293.)

I A_ S_(Applicant) has served honorably on Deployments and Detachments with the United States Marine Corps for purposes of training and real life operations.  Three years and 11 months of (4yrs) active military service, I A_ S_(Applicant) was very respectful to superior officers and Enlisted Marines of a higher grade.  The last year of my Enlistment personal troubles at home caused an alcohol situation which was never properly addressed by my Unit.

Documentation

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

Applicant’s DD Form 214
One page from Applicant’s service record

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	20000623 - 20010212	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20010213		Date of Discharge:  20050212

Length of Service (years, months, days):

Active:    03  11  27
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  23

Years Contracted:  4

Education Level:  12				AFQT:  49

Highest Rank:  LCpl				MOS:  3051

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.4 (7)				Conduct:  4.3 (7)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  Global War on Terrorism Service Medal Sea Service Deployment Ribbon (2^nd Award), National Defense Service Medal, Certificate of Commendation, Letter of Appreciation (2^nd Award), Rifle Qualification Badge (Marksman)

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:

Undated:	Pre-service waiver granted.

030331:	Applicant unauthorized absence 0430-0640 on 030331.  [Extracted from NJP dtd 030603.]

030418:	Applicant unauthorized absence at 0415-0620 on 030418.  [Extracted from NJP dtd 030603.]

030603:	NJP for violation of UCMJ, Article 86:  In that LCpl S_(Applicant) was, on or about 0430, 31 March 03, without authority, absent from his place of duty, PMO H&HS, MCAS, Cherry Point, NC.  LCpl S_(Applicant) remained absent until on or about 0640, 31 March 2003.
Violation of UCMJ Article 134: In that LCpl S_(Applicant) was on or about 0640, 31 March 2003, unable to perform his duties as a result in overindulgence of alcohol.  LCpl S_(Applicant) was given a Blood Alcohol Test at the Naval Hospital (.12% B.A.C.) and was found not competent to stand duty.
Violation of UCMJ Article 86: In that LCpl S_(Applicant) was, on or about 0415, 18 April 03, without authority, absent from his place of duty, PMO H&HS, MCAS, Cherry Point, NC.  LCpl S_(Applicant) remained absent until on or about 0620, 18 April 2003.
Violation of UCMJ Article 134: In that LCpl S_(Applicant) was on or about 0620, 18 April 2003, unable to perform his duties as a result in overindulgence of alcohol.  LCpl S_(Applicant) submitted to a Portable Breath Test which resulted in a .04% B.A.C.  LCpl S_(Applicant) was evaluated at the Naval Hospital and was found not competent to stand duty.
	Award:  Forfeiture of $500.00 per month for 2 months, restriction and extra duty for 30 days.  Forfeiture suspended for 6 months.  Not appealed.

030619:	Counseling:  Advised of deficiencies in performance and conduct (Unauthorized absence from 0430 until about 0640 on 030331 and unauthorized absence from 0415 until about 0620 on 030420.  Unable to perform duties as a result of overindulgence in alcohol on 030331 and on 030420.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

030717:	Acknowledged understanding of eligibility but not recommended for promotion to Cpl for the month of June 2003 promotion period because of PEND LEGAL.  Applicant chose not to make a statement.

040120:	Acknowledged understanding of eligibility but not recommended for promotion to Cpl for the February promotion period due to pending NJP.  Applicant chose not to make a statement.

040202:	NJP for violation of UCMJ, Article 90, 91, 92: In that LCpl S_(Applicant) did on or about 0730 on 04 Jan 12 at Marine Air Control Squadron 2 Supply arrive at work wearing earrings.  SNM was told to remove them numerous times by his NCO, SNCO and OIC.  SNM con’t to ignore their orders.
	Award:  Restriction and extra duty for 21 days, reduction to E-2.  Reduction suspended for 6 months on 040203.  Not appealed.

040217:	Suspended reduction to E-2 awarded on 040203, vacated.

040304:	Counseling:  Advised of deficiencies in performance and conduct (Unauthorized absence on 12 Feb 04.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

040406:	Applicant unauthorized absence 0600-1200 on 040406.  [Extracted from NJP dated 040607.]

040408:	Applicant examined at Group Aid Station, MACG-28, by L_K.S_, LT MC (FS) USN,  for feelings of depressed mood, 6 –7 months, life stressors to include mother with arthritis (incapacitating). Recent SI 2-3 days ago.  Formulated plan to ingest pills.  
	Assessment:  MDE.
	Plan: Schedule consult, Applicant to call for appointment. Applicant to return to clinic in a month.  Applicant contracts for safety. 

040607:	NJP for violation of UCMJ, Article 86: In that LCpl* S_(Applicant) was, on or about 0600, 6 Apr 04, without authority, absent from his place of duty, S-4 Supply, Cherry Point, NC.  PFC  S_(Applicant) remained absent until on or about 1200, 6 Apr 04.
	Award:  Restriction for 30 days, reduction to E-1.  Not appealed.
	[*Typographical error, should read “PFC”.]

041012:	Counseling:  Advised of deficiencies in performance and conduct (NJP on 030603 for violation of Art 86, unauthorized absence and violation of Art 134, intoxicated on duty.  Applicant’s NJP 040129 for violation of Art 90, Art 91 and Art 92, wearing earrings to work and violation of a direct order to remove earrings.  Applicant’s NJP on 040607 for violation of Art 86, unauthorized absence.  Applicant’s numerous violations of the UCMJ show a direct disregard for authority.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

041028:	Applicant notified of intended recommendation for discharge by reason of pattern of misconduct with a characterization of service as other than honorable conditions.  The factual basis for this recommendation was pattern of misconduct as evidenced by the multiple disciplinary infractions through nonjudicial punishment.  

041028:	Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.

041028:	Commanding Officer, Marine Air Control Squadron 2 recommended to the Commanding General, 2d Marine Aircraft Wing, via Commanding Officer, Marine Air Control Group 28, that the Applicant be discharged by reason of a pattern of misconduct, with a characterization of other than honorable.  

041102:	Commanding Officer, Marine Air Control Squadron 2 letter to Commanding General, 2d Marine Aircraft Wing, via Commanding Officer, Marine Air Control Group 28.  The letter states that the CO and Squadron Sergeant Major have interviewed the Applicant and advised him that he is being processed for administrative separation by reason of a pattern of misconduct.  CO’s comments: “ During these interviews Private S_ (Applicant) showed no indication of adhering to Marine Corps standards of good order and discipline.  Private S_ (Applicant) does not desire to remain in the Marine Corps for any period of time beyond his EAS of February 2005.  Private S_ (Applicant) does not demonstrate any rehabilitative potential for continued service in the Marine Corps.  Private S_ (Applicant) was advised that the Commanding General is the final authority for his administrative separation.  He was also advised that I am recommending to the Commanding General that the characterization for discharge is “Other Than Honorable”.”

041103:	Commanding Officer, Marine Air Control Group 28 concurred with the Squadron Commander’s recommendation of Applicant’s discharge under other than honorable conditions by reason of pattern of misconduct.

050106:	Applicant examined at Group Aid Station, MACG-28 by V_G.H_, LT MC, USNR.  Applicant is physically qualified for separation.

050107:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to pattern of misconduct, that such misconduct warranted separation, and by a vote of 2 to 1 recommended discharge under other than honorable conditions.

050114:	Commanding Officer, Marine Air Control Squadron 2 concurs with the findings and conclusions of the Administrative Separation Board.

050120:	Commanding Officer, Marine Air Control Group 28 recommended Applicant be allowed to EAS on 12 February 2005 with a General discharge.  Commanding Officer’s comments: “This package has several inconsistencies.  These start with the timeliness of this package.  This package started in June 2004, due to numerous changes and various inconsistencies it did not make it out of the Group until October 2004.
The Proficiency/Conduct marks do not support the recommendation of the discharge board for an other than honorable discharge.  Private Seymour’s in service marks are 4.4/4.3.  He has served honorably on deployments with the 31^st MEU and with the MACS-2 Detachment in Jordan.  Private Seymour’s troubles have not been indicative of his service.  He has an alcohol problem that has not been properly addressed.
Therefore, I do not believe in good conscience that an administrative separation is the correct way to deal with this Marine.  I recommend that the respondent be separated with a General under honorable condition characterization at EAS.

050202:	SJA review determined the case sufficient in law and fact.

050202:	GCMCA, Commanding General, 2d Marine Aircraft Wing directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20050212 by reason of misconduct due to a pattern of misconduct (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 the service of a member of the U.S. Marine Corps 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 3 nonjudicial punishment proceedings for violations of Articles 86 (3 specifications, unauthorized absence,), 90 (willfully disobeying lawful order of superior commissioned officer), 91 (willfully disobeying a noncommissioned officer or petty officer), 92 (failure to obey order, regulation), and 134 (2 specifications, drunkenness – incapacitating oneself for performance of duties through prior indulgence in intoxicating liquor) of the UCMJ.  Violations of UCMJ Articles 90, 91, and 92 are considered to be serious offenses.  In addition, the Applicant received 2 retention warnings, which he violated through continued misconduct, and was not recommended for promotion on 2 occasions.  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 U.S. Marine Corps and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

The Applicant contends that his problems in the Marine Corps are a result of  “personal problems at home which caused an alcohol situation”.  While he may feel that 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 Applicant’s representative contends that Applicant’s narrative reason for discharge should be changed to “convenience of the government, removing the notation of conduct.”  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.  The summary of service clearly documents the pattern of misconduct for which the Applicant was discharged.  Since no other Narrative Reason for Separation could more clearly describe why the Applicant was discharged, a change would be inappropriate.

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 additional evidence related to this 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 P1900.16F), effective 01 Sep 2001 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 90 (willfully disobeying lawful order of superior commissioned officer), 91 (willfully disobeying a noncommissioned officer or petty officer), 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