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USMC | DRB | 2001_Marine | MD01-00094
Original file (MD01-00094.rtf) Auto-classification: Denied


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

ex-PVT, USMC
Docket No. MD01-00094

Applicant’s Request
The application for discharge review, received 001019, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a documentary record discharge review. The applicant listed Veterans of Foreign Wars as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010502. 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 – Misconduct – Minor disciplinary infractions (administrative discharge board required but waived), authority: MARCORSEPMAN Par. 6210.2.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

 1. Decorations, Letter of Appreciation, National Defense Medal, Sea Service Deployment Ribbon, Southwest Asia Service Medal w/2*, Meritorious Mast.

2. Graduated boot camp platoon honor man.

3. Participated in Operation Desert Shield and Desert Storm.

4. Discharge was due to minor disciplinary infractions.

5. My other than honorable discharge prevents me from receiving help or treatment for gulf war syndrome and providing for my family.

6. My medical record can not be located.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Letter from VFW
Copy of DD Form 214
Medical Document (1pgs)
Copy of Evaluation Report for VA rights
Service Related Documents (22pgs)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              None
         Inactive: USMCR(J)                890429 - 890503  COG

 Period of Service Under Review :
Date of Enlistment: 890504               Date of Discharge: 911003

 Length of Service (years, months, days):

         Active: 02 05 00
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

Education Level: 11                        AFQT: 72

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.22 (8)             Conduct: 3.5(8)

 Military Decorations: None

 Unit/Campaign/Service Awards: Rifle Marksman Badge, NDSM, SSDR, SASMw2*, Meritorious Mast

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 :

891031:  NJP for violation of UCMJ, Article 134: On or about 2230, 891025, as a result of previous indulgence in intoxicating liquor was incapacitated for proper performance of duties.
         Award: Forfeiture of $150.00 per month for 1 month, restriction for 7 days. Not appealed.

891128:  NJP for violation of UCMJ, Article 86: UA (AWOL) from 2301, 891121 to 2330, 891121 from AS, ScolcBn, MCB, CamPen.
         Award: Forfeiture of $100.00 per month for 2 months (forfeiture of $100.00 per month for 1 month suspended for 6 months), restriction for 30 days (15 days suspended for 6 months). Not appealed.

891204:  Counseled for deficiencies in performance and conduct. [My frequent involvement with military authorities as evidenced by my two recent non judicial punishment. Specific reason for counseling] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

900618:  Counseled for deficiencies in performance and conduct. [Misuse of alcohol resulting in waking up in another barracks without any knowledge of how you got there] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

910612:  Counseled for deficiencies in performance and conduct. [Specifically, being UA from PT, being late to work, and being in an untidy uniform on 910513; and being UA from open-up duty at your work section on 910604] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.


910606:  Admitted to Tripler Army Medical Center for inpatient Level III Alcohol rehabilitation.

910625:  Discharged from Tripler Army Medical Center, Triservice Alcoholism Recovery Facility 6 week program. Discharge Diagnosis: Alcohol Dependence. Treatment outcome: Rehabilitation Failure.

910805:  Counseled for deficiencies in performance and conduct. [Failure of Level III Alcohol Rehabilitation] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

910826:  NJP for violation of UCMJ, Article 86: Failed to report to appointed place of duty Bks# 5070 for DNCO at 0800 ON 910817, violation of UCMJ Article 86: UA (AWOL) at Legal Service Center, HqSvcCo, 1stMEB, failed to report to appointed place of duty for morning open-up at 0640, 910822, violation of UCMJ Article 92: Knowingly failed to obey BdeO 1124.8J by failing to return government owned vehicle to Station Motor Pool.
         Award: Forfeiture of $150.00 per month for 2 months, restriction and extra duty for 30 days, reduction to E-2. Not appealed.

910912:  NJP for violation of UCMJ, Article 91: At HqSvcCo, 1stMEB, at 1915, 910911, disrespectful to Cpl S___ by saying to him, "You’re a God Damn Nazi" or words to that effect.
         Award: Forfeiture of $200.00 per month for 2 months, restriction and extra duty for 30 days, reduction to E-1. Not appealed.

910912:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions.
910912:          Applicant advised of his rights and having elected 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.

910912:  Commanding officer 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, an offenses set forth in the page 11 counseling entry of 910612.

910913:  SJA review determined the case sufficient in law and fact.

910918:  GCMCA [Commanding General] 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 911003 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 the applicant’s issues 1-3, the Board found that although the applicant may have received Letters of Appreciation, several awards and served in Desert Shield/Desert Storm, the applicant’s misconduct outweighed the positive aspects of his service and he was therefore deserving of an other than honorable characterization. No relief will be granted based on these issues.

The Board agrees with the applicant’s issue 4 that he was discharged for misconduct due to minor disciplinary infractions. Although the applicant’s offenses may have been minor in nature, the applicant was given several opportunities to change his behavior, which included 4 documented service record counseling entries, 4 CO’s NJPs and the opportunity to attend inpatient alcohol rehabilitative treatment. The applicant was a rehab failure and did not heed the warnings from his chain of command, and therefore was administratively separated from the Marine Corps. The Board found that the applicant’s discharge was both proper and equitable. No relief will be granted based on this issue.

In response to the applicant’s issue 5 of receiving treatment for gulf war syndrome, the applicant is encouraged to contact his nearest VA facility. The Department of Veterans Affairs (DVA) is a separate agency that makes its own determinations on VA eligibility. There is no requirement or law that grants recharacterization based solely on the issue of obtaining veteran’s benefits. The Board encourages the applicant to contact his nearest DVA Regional Office for further information regarding his VA eligibility. This is not an issue for which the Board will grant relief.

The applicant’s issue 6 is a non decisional issue for the Board.

There is no law or regulation that provides for the upgrade of an unfavorable discharge based solely on the passage of time, or good conduct in the civilian life subsequent to leaving the Service. However, the Board is authorized to consider post-service factors in the recharacterization of a discharge (D). Those factors include, but are not limited to, the following: evidence of continuing educational pursuits (transcripts, diplomas, degrees, vocational-technical certificates), a verifiable employment record (Letter of Recommendation from boss), documentation of community service (letter from the activity/community group), certification of non-involvement with civil authorities (police records check) and proof of his not using drugs (detoxification certificate, AA meeting attendance or letter documenting participation in the program) in order for consideration for clemency based on post-service conduct. At this time, the applicant has not provided any documentation of good character and conduct. Therefore no relief will be granted. The applicant is reminded that he is eligible for a personal appearance hearing provided the application is received within 15-years from the date of discharge.

 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 92, fail to obey an order.
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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