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

FOR OFFICIAL USE ONLY

ex-PFC, USMC
Docket No. MD06-00753

Applicant’s Request

The application for discharge review was received on 20060511.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable and the Narrative Reason for Separation be changed to “convenience of the government.”  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 20070308.  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 - ISSUES AND DOCUMENTATION

Decisional Issues

1.	EQUITY:  Proficiency and conduct marks, record of promotions and awards show Applicant’s service did not merit an under other than honorable conditions characterization.
2.	EQUITY:  Applicant’s record of nonjudicial punishments show only isolated and minor offenses.
3.	EQUITY:  Youth and immaturity impaired Applicant’s ability to serve.
4.	EQUITY:  Applicant’s medical and physical problems impaired his ability to serve.
5.	EQUITY:  Applicant was being considered for a medical board prior to his discharge by reason of misconduct.
6.	EQUITY:  Post-service conduct.

Documentation

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

Applicant’s DD Form 214 (Member 4)
Applicant’s DD Form 214 (Member 1)
Letter of Recommendation from D_ K. W_, dtd July 20, 2005
Character Reference Letter from R_ and C_ B_, dtd July 19, 2005
Criminal records check report, dtd September 26, 2005
79 pages from the Applicant’s service and medical records
Letter from Applicant, dtd May 3, 2006

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	19990917 - 20000704	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20000705		Date of Discharge:  20021024

Length of Service (years, months, days):

Active:    02  03  20  
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  18

Years Contracted:  4 

Education Level:  11				AFQT:  72

Highest Rank:  LCpl			MOS:  3043

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.2*		Conduct:  4.0*

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  National Defense Service Medal, Meritorious Unit Commendation, Rifle Marksmanship Badge

*Extracted from SJA message dtd 021019

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:

001027:	Counseling:  Advised of deficiencies in performance and conduct (Total lack of integrity and intestinal fortitude, SNM faked an injury in order to avoid the 8 mile hike while a student at Golf Co MCT Bn.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

001031:	Mental health evaluation as a result of statements regarding disillusionment with Marine Corps.  Assessment:  Normal mental status exam.  Return to full duty.

010328:	Counseling:  Advised of deficiencies in performance and conduct (Violation of Article 134-Indecent Language and Communicating a Threat), sources of assistance provided.

010330:	Mental health evaluation as a result of making a suicidal statement to his section head.  Assessment:  Rule out personality disorder vs Depression vs Stress Reaction.

010831:	NJP for violations of UCMJ.  Article 86: Without authority absent himself from his appointed place of duty. Article 92: (2 specs): Having received a lawful order, willfully disobey.  Award:  Forfeiture of $241.00 pay per month for 1 month, restriction for 14 days.  Not appealed.

020124:	NJP for violations of UCMJ. Article 92: Failed to obey a lawful order, by misusing a government e-mail, communicating negative messages about other Marines.  Article 92: Failed to obey a Marine Corps order by drinking under the legal age of 21.  Article 92: Failed to obey a lawful order, general regulation, by driving a government vehicle for a personal use.  Award:  Forfeiture of $323.00 pay per month for 1 month, restriction and extra duty for 14 days.  Not appealed.

020206:	Counseling:  Advised of deficiencies in performance and conduct (Substandard performance and pattern of misconduct.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

020430:	NJP for violations of UCMJ.  Article 92: Violated a lawful order by consuming alcohol while under the legal age limit.  Article 134: Drunk and disorderly conduct.  Award:  Forfeiture of $619.00 pay per month for 2 months, reduction to E-2 and 60 days restriction.  Forfeiture of $619.00 pay per month for one month and restriction for 30 days suspended for 6 months.  Not appealed.

020712:	Applicant discharged from Intensive Outpatient Treatment Program.  [Treatment dates 020617-020712.]  Discharged as successful treatment based upon his efforts to address identified treatment plan issues.  Discharge diagnosis:  Alcohol dependence.  Prognosis is poor based upon Applicant’s acknowledgement that he will drink again and his self-defeating cognitions.

020924:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of a pattern of misconduct.  The factual basis for this recommendation was two adverse Page-11 entries, and three NJP’s.  Applicant informed the least favorable character of service possible was under other than honorable conditions.

020924:	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.

020924:	Commanding Officer recommended Applicant’s discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

021019:	SJA review determined the case sufficient in law and fact.

021021:	GCMCA, Commanding General, 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 20021024 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).  

Issues 1-4.  The Applicant implies that his discharge is inequitable because he committed only isolated minor offenses and that his ability to serve was impaired by youth and medical/physical problems.  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 and 134 of the UCMJ.  The evidence of record also shows the Applicant was counseled for violations of Article 134 of the UCMJ for indecent language and communicating a threat.  The Applicant’s violations of Article 92 of the UCMJ are serious offenses for which a punitive discharge is authorized if adjudged as part of the sentence upon conviction at special or general court-martial.  The Applicant’s violation of Article 134 of the UCMJ, communicating a threat, which was not adjudicated, is also the commission of a serious offense.  Neither the evidence of record nor the documentation and statements submitted by the Applicant show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions.  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.

Issue 5.  The Applicant implies that his narrative reason for separation is inequitable because he was being considered for separation for a medical reason.  For the Applicant’s edification, DoD disability regulations do not preclude a disciplinary separation.  Appropriate regulation stipulates that separations for misconduct take precedence over potential separations for other reasons.  Whenever a member is being processed through the Physical Evaluation Board, and subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended.  The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings.  If the action includes either a punitive or administrative discharge for misconduct, the medical board report is filed in the member’s terminated health record.  Relief denied.

Issue 6.  The Applicant implies that his discharge is inequitable based on his post-service conduct.  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 sufficient post-service documentation to consider mitigating the misconduct that resulted in the characterization of discharge.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Relief denied.

The Applicant requested that his narrative reason for separation be changed.  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 evidence of record shows the Applicant met the criteria for separation by reason of misconduct due to a pattern of misconduct.  On 20020924, the Applicant was notified of his Commanding Officer’s intention to recommend his separation by reason of misconduct due to pattern of misconduct.  The GCMCA directed the Applicant’s separation by reason of misconduct due to pattern of misconduct.  No other Narrative Reason for Separation could more clearly describe why the Applicant was discharged.  To change the Narrative Reason Separation 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 92, failure to obey order/regulation or Article 134, communicating a threat.
 
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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction.  You should read Enclosure (5) of the Instruction 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 Instruction 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

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