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USMC | DRB | 2000_Marine | MD00-00229
Original file (MD00-00229.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD00-00229

Applicant’s Request
The application for discharge review, received 991201, requested that the characterization of service on the discharge be changed to general/under honorable conditions and the reason for the discharge be changed to Convenience of the Government. The applicant requested a personal hearing review. The applicant designated the Veterans of Foreign Wars as his representative on the DD Form 293.
In the acknowledgement letter to the applicant, he was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance haring.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000824. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service. 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 – Minor disciplinary infractions (administrative discharge board required but waived), authority: MARCORSEPMAN Par. 6210.2.

The NDRB did note an administrative error on the original DD Form 214. Block 12a, Date Entered AD This Period, should read: “88 11 16” vice “88 11 17”and Block 12c, Net Active Service This Period, should read: "03 06 23" vice "03 10 18". The original DD Form 214 should be corrected or reissued as appropriate.


PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)
1. At the time, my discharge was based on (as the Marine Corps, Stated), three minor offenses, the first minor offense was held at company level office hours. The second minor offense was held at battalion level office hours. The third (possible) minor offense was not a military conviction of any type. None of these minor offenses were held at or led to a court martial of any type.

2. My use of alcohol impaired my ability to serve. All three minor offenses were a direct result of alcohol abuse, as well as my lack of ability to foresee the consequences that would follow as a result of my alcohol abuse. With my second offense, my abuse of drinking impaired my ability to make a moral and ethical decision to say no to a control substance, under the influence of alcohol, I wrongfully allowed myself to become influenced by a bad crowd of people. As a result of the Battalion office hours, I was admitted to a four-day rehabilitation workshop. I was still at the time in denial of being an alcohol abuser. Although after a prior offense that was the result of alcohol abuse and a second offense of showing positive for a controlled substance, Marine Corps. Felt that a four-day workshop was enough rehabilitation and released me. I feel the workshop didn't allow myself enough very-needed time to help me to admit my problem and to guide me into an educated direction of self-awareness.

3. Under current standards, I, S_ A_ T_, would not receive the type of discharge I did. My accomplishments and achievements in the seven years since my discharge have been of the highest and most respected standards. I have held management positions in charge of the welfare of company and state employees, as well as all department operations. I have exemplary recommendations from every job position since my discharge. Every employer I've worked for has conducted a pre-employment drug test and several random tests there after. I have no criminal or driving record to date. I transferred from a junior college (Northland Pioneer College, S_ L_, AZ) to N_ A_ U_ where I am preparing to start my senior year majoring in visual communication. My wife (a business major) and I have managed to accomplish all this while working full-time and raising two beautiful children (we originally had three children but lost a son three days after birth to congenital heart failure). After my discharge, I deeply regretted the pain and failure I had caused to my country, and to the fellow Marines, who had placed so much time and devotion into my success. Since then I have dedicated my life to God, my family, and community, and regardless of the DRB decision in this case, I will continue to be a respectable, dedicated and productive individual to my family and community.

Submitted by VFW:

4. IAW SECNAV Instruction 5420.174C of 22 August 1984 (MDR 1984), enclosure (1), chapter 9, paragraph 9.3, Equity of Discharge, we ask the Board to consider the following factors:

•         The applicant was awarded the Southwest Asia Service Medal and the National Defense Service Medal.
•         The applicant successfully completed counseling at Northern A_ University (NAU) Counseling and Testing Center.
•         Flagstaff Police Department report dated 12 December 1999 indicates a clean record.
•         Marriage Certificate and two birth certificates clearly are evidence of responsibility needed to raise a family.
•         Educational pursuits at Northland Pioneer College with professor stating, "I consider S_ to be one of my best students". Acceptance letter fo NAU for spring 99' semester.
•         Solid employment history. The applicant attained his commercial driver license and his employer stated that "the professionalism and hard work S_ provided our company was nothing less than exemplary.
The applicant's ability to serve was impaired by his use of alcohol. The evidence clearly indicates outstanding post-service conduct.

5. We ask the Board to consider the applicant's case IAW SECNAV Instruction 5420.174C of 22 August 1984 (MDR 1984), enclosure (1), chapter 9, paragraph 9.2, Propriety of Discharge.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214
NAU Counseling and Testing Center ltr of Dec 22, 1999
Applicant's Marriage License
Applicant's Daughter's Birth Certificate of Mar 3, 1995
Applicant's Son's Birth Certificate of 3 Sep 1998
Letter of Recommendation from K_ E. R_, Professor of Philosophy dtd Oct 9, 1998
Letter of Recommendation from C_ F_, Instructor of Education, dtd Oct 6, 1998
Letter of Employment and Recommendation from Fine Host Corp, dtd Oct 1998
Letter of Appreciation from Holbrook Unified School District No3 dtd Aug 15, 1995
Letter of Course Completion and Recommendation from M_ E_, Lead Instructor, dtd Aug 1, 1996
Letter of Employment & Recommendation from Pepsi-Cola dtd May 20, 1998
Letter of Recommendation from Fullhouse Cinder Co. undated
Diploma from Commercial Truck Driving School
Certificate of Admission to NAU.
Flagstaff Police Dept check dtd 12-29-99

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                880119 - 881115  COG

 Period of Service Under Review :
Date of Enlistment: 881116               Date of Discharge: 920608

 Length of Service (years, months, days):

         Active: 03 06 23
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 33

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.97 (10)            Conduct: 3.55 (10)

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR (w/1 Star), NDSM, LOA, SWASM (w/2 Stars), NUC

Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – Minor disciplinary infractions (administrative discharge board required but waived), authority: MARCORSEPMAN Par. 6210.2.

 Chronological Listing of Significant Service Events :

891006:  NJP for violation of UCMJ, Article 86: on or about 0645, 891010 to 2310, 891011, did without authority absent himself from his place of duty at which he was required to be at, to wit: 0645 Bn PT Formation on 891010; violation of UCMJ, Article 92: on or about 1100 on 891010 while inventorying PFC T_ gear, did at Camp Schwab, Okinawa in Barracks 03500, fail to obey a lawful Marine Corps Order, by wrongfully keeping in his clothing drawer 1 box containing 5 simulators, booby trap, illumination.
Awarded forfeiture of $150.00 per month for 1 month, restriction and
extra duties for 14 days. Not appealed.

 891227:  Not recommended for promotion to LCpl for Jan 90 due to recent insubordinate conduct which resulted in NJP.
900130:  Not recommended for promotion to LCpl for Feb 90 due to recent insubordinate conduct which resulted in NJP.
910722:  Counseled for deficiencies in performance and conduct [violation of Article 86 concerning failure to make formation in a timely manner] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

910726:  NJP for violation of UCMJ, Article 112a: on or about 910709, member did wrongfully was a controlled substance, to wit: cocaine.
         Award: Forfeiture of $422 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2 and correctional custody unit for 30 days (suspended for 6 months). No indication of appeal in the record.

911210:  NJP for violation of UCMJ, Article 111: on or about 2400, 911123, member was stopped by the military police for possible DUI but refused the breath test.
         Award: Forfeiture of $375 per month for 2 months, restriction and extra duty for 00 days, reduction to E-1. No indication of appeal in the record.
920504:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions as evidenced by three non-judicial punishments which were conducted on 6 Oct 89, 26 Jul 91 and 10 Dec 91.
920504:  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.

920504:  Commanding officer (3 BN, 2d MAR, 2d MARDIV, FMF) recommended discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions. The factual basis for this recommendation was three non-judicial punishments which were conducted on 6 Oct 89, 26 Jul 91 and 10 Dec 91. Member had been appropriately counseled; however, he has filed to take corrective action.

920526:  SJA review determined the case sufficient in law and fact.

920528:  GCMCA [CG, 2d MARDIV] directed the applicant's discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions.

PART III – RATIONALE FOR DECISION AND PERTINENT
REGULATION/LAW

Discussion

The applicant was discharged on 920608 under other than honorable conditions for misconduct due to minor disciplinary infractions (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).

In response to applicant’s issue 1, the Board found that even though the applicant was discharged for ‘minor disciplinary infractions’, the applicant could easily have been discharged for commission of a serious offense for either his drug abuse or his DUI. The Board will not grant relief on the basis of this issue. In addition, 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 that minor disciplinary infractions was the reason the applicant was discharged. No other Narrative Reason for Separation could more clearly describe why the applicant was discharged. To change the Narrative Reason Separation would be inappropriate.

In issue 2, the applicant states that “alcohol impaired my ability to serve.” The Board does not accept alcohol abuse as a factor sufficient to exculpate the applicant from the consequences of his misconduct. While the Board recognizes that Alcoholism and alcohol abuse are not, in themselves, offenses which constitute grounds for punishment, it reminds applicants who commit offenses while drinking that they are still responsible for their actions. They must accept the consequences of their misconduct or misbehavior, whether committed before or after they received rehabilitation treatment.

 In response to issues 3 and 5, the applicant states that “under current standards” he would not have received the same type of discharge that he did. The Board found nothing in the records, nor did the applicant provide anything to indicate or to show that there exists an error of fact, law, procedure, or discretion associated with his discharge at the time of its issuance, and that his rights were prejudiced thereby. Furthermore, there has been no change in policy by the Marine Corps, or higher authority, made expressly retroactive to the type of discharge received by the applicant. The discharge was indeed a proper discharge IAW SECNAV Instruction 5420.174C of 22 August 1984 (MDR 1984), enclosure (1), chapter 9, paragraph 9.2, Propriety of Discharge. Relief denied.

 The applicant’s representative requested the Board consider the following as issue 4: IAW SECNAVINST 5420.174C of 22 August 1984 (MDR 1984), enclosure (1), Chapter 9, paragraph 9.3, Equity of Discharge, as it pertains to post-service conduct, in assessing the merits of his application. Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review, can be considered. In determining whether a case merits a change based on post-service conduct, the NDRB considers the length of time since discharge, the applicant's record of community service, employment, conduct, educational achievements, and family relationships. In reviewing the applicant’s post service, the Board was impressed with the efforts he has begun to make in attempting to recoup his reputation which has been sullied by his misconduct in the Marine Corps. The applicant provided evidence of family relationships, continuing educational pursuits, a verifiable employment record, and certification of non-involvement with civil authorities as documentation of his post-service. However, due to the circumstances concerning the applicant’s discharge, t he applicant should have produced documentation of community service and proof of his not using drugs or alcohol in order for consideration for clemency based on post-service conduct. At this time the applicant has not provided sufficient documentation of good character and conduct. Therefore, relief will not be granted at this time. The applicant is reminded that he remains eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge. Representation at a personal appearance hearing is recommended. The possibility of favorable action in the applicant’s case will increase with the amount of time he maintains an alcohol and drug free lifestyle. Verifiable documentation of such a lifestyle is essential. The applicant is highly encouraged to document his community service, remain sober, and apply for a personal appearance hearing prior to 8 June, 2007.

Pertinent Regulation/Law (at time of discharge)

 A. Paragraph 6210, Misconduct, of the Marine Corps Separation and Retirement Manual, ( MCO P1900.16D), effective 27 Jun 89 until 17 Aug 95.

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 112a, for drug abuse.
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      


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