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USMC | DRB | 2001_Marine | MD01-00034
Original file (MD01-00034.rtf) Auto-classification: Denied


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

ex-PFC, USMC
Docket No. MD01-00034

Applicant’s Request
The application for discharge review, received 001010, requested that the characterization of service on the discharge be changed to honorable. The applicant requested 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 010329. 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: GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: MARCORSEPMAN Par. 6210.2.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1. I am requesting that my discharge be upgraded from a General Discharge to a Honorable Discharge. My primary reason for this is to be able to use the Montgomery GI Bill. I am currently attending college to get a degree in Computer Science. My abuse of alcohol is the cause of my unprofessional behavior while I served in the Marine Corps. I have sustained from alcohol since July of 1999 and have been attending numerous AA meetings. I do not want to destroy my civilian life like I did my Marine life. I also feel that my first three years of above average service deserves to be considered worthy of deserving the GI Bill, which I did contribute twelve hundred dollars to during my first year. Please be understanding when reviewing my records. A honorable discharge would be a tremendous help in going on about my life and staying on the right track.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                950118 - 950807  COG

 Period of Service Under Review :
Date of Enlistment: 950808               Date of Discharge: 990807

 Length of Service (years, months, days):

         Active: 04 00 00
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 69

 Highest Rank: Cpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.4 (11)             Conduct: 4.1 (11)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, Letter of Appreciation, SSDR

 Days of Unauthorized Absence: None

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: MARCORSEPMAN Par. 6210.2.

 Chronological Listing of Significant Service Events :

971230:  Counseled for deficiencies in performance and conduct. [Lack of judgment for drinking underage, a direct violation of Group Order 11000.5. This behavior displays a lack of concern for setting a positive example for a Marine who is trying to become a NCO, disrespect for orders, and an absence of dependability.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

980316:  Counseled for deficiencies in performance and conduct. [Unauthorized absence and disobedience of a written order. Specifically on 980615 you were UA from the rifle range detail.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

980811:  Counseled for deficiencies in performance and conduct. [Conduct (pattern of misconduct) and your frequent violations involving alcohol. Specifically an incident which required a fellow Marine and yourself to be hospitalized, insubordinate conduct towards a DNCO and disobedience of a Medical Officer's instruction.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

 980902:  NJP for violation of UCMJ, Article 86 (2 specs):
 Specification 1: Unauthorized absence from 0631-1110, 980803.
Specification 2: Unauthorized absence from 0531-1330, 980919.
Violation of UCMJ, Article 92 (2 specs):
Specification 1: Failed to obey lawful order issued by his Plt Sgt to be at the PT field by 0630 on 980803.
Specification 2: Failed to obey lawful order issued by the CO to be at the armory by 0530, 980819.
Awarded forfeiture of $250.00 per month for 2 months, restriction and extra duties for 30 days, reduced to LCpl. Forfeiture suspended for 6 months. Not appealed.
981002:  Applicant successfully completed treatment for substance abuse/dependency.

981211:  Applicant involved in motor vehicle accident and placed under arrest at Mission Hospital for violation of DUI. BAC .24.

 990227:  NJP for violation of UCMJ, Article 92:
 Specification: Fail to obey order from Commander, Naval Medical Center to attend after care twice a week.
Violation of UCMJ, Article 117:
Specification: Fail to obey order from Commander, Naval Medical Center not to consume any alcohol.
Awarded Not found in service record.
990303:  Substance Abuse Counseling Center screening and assessment: Substance abuse disorder. Medical evaluation required at SACC 1320, 990309. Recommend residential alcohol treatment at SARD, Point Loma, Client scheduled to see LIP at 1330 on 990309 for treatment placement and diagnosis. Client met 5 out of 7 DSM IV criteria for alcohol dependence. Client to complete SHAPE physical and legal action prior to treatment. Date pending physical and notification from SACO that client is cleared to attend treatment.
990311:  NJP for violation of UCMJ, Article 91:
 Specification: Willfully disobey lawful order from Sgt to calm down and quit being disrespectful and confrontational on 0100, 990227.
Violation of UCMJ, Article 92 (2 specs):
Specification 1: Fail to obey lawful order issued by Commander, Naval Medical Center, not to consume any alcohol on 990227.
Specification 2: Fail to obey lawful order issued by Commander, Naval Medical Center, by not attending any after care since his release from Level III on 981002.
Violation of UCMJ, Article 117 (2 specs):
Specification 1: Wrongfully use provoking words, to wit: "fuck this shit, this is bullshit" on 0100, 990227.
Specification 2: Wrongfully use provoking gestures, to wit: approaching in a combative manner and having to be restrained by his peers on 0100, 990227.
Violation of UCMJ, Article 134:
Specification: Drunk and disorderly on 0100, 990227.
Awarded forfeiture of $150.00 per month for 2 months, reduced to PFC. Forfeiture suspended for 6 months. Not appealed.
990311:  Counseled for deficiencies in performance and conduct. [Conduct (pattern of misconduct) and your frequent violations involving alcohol. Specifically an incident which required a fellow Marine and yourself to be hospitalized, insubordinate conduct towards an DNCO and disobedience of a Medical Officer's instruction.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued. [Extracted from Executive Officer, Detachment Bravo letter dated April 26, 1999.]

990427:  Civil Conviction, Municipal Court, North County Judicial District for driving under the influence.
         Sentence: Confinement for 10 days, probation for 3 years, fine, restitution ordered.
990614:  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.
990618:          Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
990618:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions and alcohol rehabilitation failure. The factual basis for this recommendation was your diagnosis for alcohol rehabilitation failure and misconduct minor disciplinary infractions.

 990716:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed misconduct due to minor disciplinary infractions and alcohol rehabilitation failure, that the misconduct warranted separation, and recommended discharge general (under honorable conditions).

990729:  SJA review determined the case sufficient in law and fact.

990803:  GCMCA [Commanding General, 3d Marine Aircraft Wing] directed the applicant's discharge general (under 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 990807 general (under 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).

The applicant introduced no decisional issues for consideration by the Board, however did state that “I also feel my first three years of above average service deserves to be considered worthy of deserving the GI Bill...”. The applicant’s record shows the first adverse counseling entry occurred on 971230, about two years after he reported to his first duty station. Further, the a pplicant was briefed on Veterans' Educational Assistance Act of 1984 (G.I. Bill) during his enlistment. He was specifically informed that an honorable discharge after completion of 36 months of active duty would be required for entitlement to benefits under the G.I. Bill and his signature on DD Form 2366, indicates the applicant enrolled in the GI Bill with this understanding. Therefore, relief is denied on this basis.

When a Marine’s service has been honest and faithful, it is appropriate to characterize that service as honorable. General (under honorable conditions) 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 award of nonjudicial punishment (NJP) for offenses triable by court-martial on three occasions, adverse counseling entries on five occasions, a civil conviction for DUI, and by failing to complete directed alcohol rehabilitation. The applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful disobedience of the orders and directives which regulate good order and discipline in naval service, and falls short of that required for an honorable characterization of service. An upgrade to honorable would be inappropriate. Relief is therefore denied.

The following is provided for the applicant’s edification. The NDRB is authorized to consider 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. However, there is no law or regulation that provides that a less than honorable discharge may be upgraded based solely on the passage of time, or good conduct in the civilian life subsequent to leaving the service. Normally, to permit relief, an error or injustice must be found to have existed during the period of enlistment in question. No such error or injustice is evident in the applicant’s service record. 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. Verifiable proof of any post-service accomplishments must be provided in order for the applicant to claim post-service conduct and behavior as a reason to upgrade a less than Honorable discharge. The applicant provided only a copy of his DD Form 214. The applicant's efforts need to be more encompassing than those provided. The applicant should have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not abusing alcohol in order for consideration for upgrade based on post-service conduct. At this time the applicant has not provided sufficient documentation of good character and conduct. Therefore no relief will be granted.

The applicant is reminded that he remains eligible for a personal appearance hearing provided that an application is received within 15 years from the date of discharge. Representation at a personal hearing is not mandatory, but is strongly recommended. This representation need not be a lawyer, but may be any person of stature and good standing in the community, including representatives of the various service organizations.
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 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, Articles 91 and 92, failure to obey lawful orders.
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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