Search Decisions

Decision Text

USMC | DRB | 2001_Marine | MD01-00218
Original file (MD01-00218.rtf) Auto-classification: Denied


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

ex-PVT, USMC
Docket No. MD01-00218

Applicant’s Request
The application for discharge review, received 001211, requested that the characterization of service on the discharge be changed to general/under honorable conditions. The applicant requested a documentary record discharge review. The applicant did not list any representative on the DD Form 293. Subsequent to the application, the applicant obtained representation by the American Legion..

 Decision

A documentary discharge review was conducted in Washington, D.C. on 010601. 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, authority: MARCORSEPMAN Par. 6210.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. (Equity Issue) This former member avers that his character of service is too harsh because the USMC only considered the negative aspects of his service and none of the positive. He opines that had both been considered, his overall service record would support separation under honorable conditions and on this basis petitions the Board's relief.

2. (Equity Issue) This former member further requests that the Board include provision of SECNAVINST 5420.174C., enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of his application.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214
Letters of Appreciation (2)
Meritorious Mast Certificate
Certificate of Appreciation
Certificate of Commendation

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              None
         Inactive: USMCR(J)                960930 - 961021  COG

 Period of Service Under Review :
Date of Enlistment: 961022               Date of Discharge: 990513

 Length of Service (years, months, days):

         Active: 02 07 21
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 94

 Highest Rank: PFC

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.05 (7)             Conduct: 3.6(7)

 Military Decorations: None

 Unit/Campaign/Service Awards: Meritorious Mast, SSDR

Days of Unauthorized Absence: None

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 :

980122:  NJP for violation of UCMJ, Article 92: Did on 971122 at approx. 2030 hrs, violate MCASO 1746.1T(Alcohol Beverage Control) by possessing alcoholic beverage while being under the age of 20 years old, violation of UCMJ Article 92: Did on 971116 at approx. 1530 hrs, violate MCASO 1746.1T by drinking alcoholic beverage while being under the age of 20 years old at the T-Club, MCAS, Iwakuni, violation of UCMJ, Article 121: Did on 971116 at time unknown, steal a lazer light from the T-Club value of the lazer light at $735.00, at, MCAS, Iwakuni, Japan.
         Award: Forfeiture of $400.00 per month for 2 months, restriction for 45 days, extra duty for 30 days, reduction to E-1. Not appealed.

980710:  NJP for violation of UCMJ, Article 92: Did on or about 2318, 980706, violate a lawful general order, to wit: BnO 1700.3G, by drinking under the legal age, violation of UCMJ Article 111: Did on or about 2318, 980706, physically control a passenger car, with a .19 BAC, on Camp Lejeune, NC.
         Award: Correctional Custody for 30 days, forfeiture of $463.00 per month for 1 month. Not appealed.

980807:  Counseled for deficiencies in conduct. [Violation of MCO P1020.34F, specifically, body piercing]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued

980807:  Counseled for deficiencies in conduct. [Specifically, for your lack of judgment and substandard conduct]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued

980813:  Alcohol Treatment Facility Substance Abuse Evaluation found applicant alcohol dependent, diagnosis confirmed by a credentialed provider.

981112:  NJP for violation of UCMJ, Article 92: Did on or about 981104 violate a lawful general order, to wit: MCO 1700.22D consumption of alcohol under the legal age, violation of UCMJ Article 92: Did on or about 981104, violate a lawful general order, to wit: BnO 1700.3G, by consuming alcohol beverages within 6 hours prior to reveille.
         Award: Forfeiture of $463.00 per month for 2 months (suspended for 6 months), restriction for 60 days (suspended for 6 months), reduction to E-1. Not appealed.

981218:  NJP imposed and suspended on 981112 for a period of 6 months is hereby vacated and the punishment is ordered executed this date.

990107:  NJP for violation of UCMJ, Article 134: Did on or about 981231, break Battalion Commanders restriction, by going to the exchange, wearing civilian attire, and having a visitor in his barracks room, violation of UCMJ Article 86: Did on or about 0900, 990101, absent himself from his appointed place of duty, to wit: break Battalion restriction check-in at Bldg FC 400, and did remain so absent until 0910, 990101.
         Award: Restriction and extra duty for 45 days. No indication of appeal in the record.

990120:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 86(3 Specifications), Spec 1: Did on or about 0900, 990117, absent himself from his appointed place of duty, to wit: Restriction muster at FC400, located at CamLej, NC., and did remain so absent until on or about 1100, 990117, Spec 2: Did on or about 0700, 990118, absent himself from his appointed place of duty, to wit: Restriction muster at FC400, located at CamLej, NC., and did remain so absent until on or about 0712, 990118, Spec 3: Did on or about 0900, 990118, absent himself from his appointed place of duty, to wit: Restriction muster at FC400, located at CamLej, NC., and did remain so absent until on or about 0913, 990118.
         Finding: to Charge I and specifications 1,2, and 3 thereunder, guilty.
         Sentence: Confinement for 30 days, forfeiture of $639.00 pay per month for 1 month.
         CA action 990122: Sentence approved and ordered executed.
990303:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.
990304:          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.

990304:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct. The factual basis for this recommendation was your past record of misconduct, i.e. Squadron NJP on 980122 for 2 counts of drinking under age, and stealing laser light of a value of $735.00. Bn NJP on 980710 for drinking under the legal age and physically controlling a car with a BAC .19. Bn NJP on 981112 for drinking under the legal drinking age and consuming alcohol beverage within 6 hours of reveille. Bn NJP on 990107 for breaking Battalion Commanders restriction and UA for a restriction muster. SCM on 990120 for three specifications of unauthorized absence.

990311:  SJA review determined the case sufficient in law and fact.

990319:  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 990513 under other than honorable conditions for misconduct due to a pattern of misconduct (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’s first issue states: “(Equity Issue) This former member avers that his character of service is too harsh because the USMC only considered the negative aspects of his service and none of the positive. He opines that had both been considered, his overall service record would support separation under honorable conditions and on this basis petitions the Board's relief.” After careful review of the applicant’s service record the Board found the applicant had four NJP’s and one Summary Court Martial conviction. The record shows the applicant was repeatedly counseled and warned about the negative consequences of his misconduct. The Board found the negative aspects of this former serviceman far outweighed his positive contributions. Relief is denied.

 The applicant’s second issue states: “(Equity Issue) This former member further requests that the Board include provision of SECNAVINST 5420.174C., enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of his application.” The NDRB is authorized to consider post-service factors in the re characterization of a discharge. 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 the civilian life subsequent to leaving the service. Normally, to permit relief, an error or injustice must have been found to have existed during the period of enlistment in question. 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, may be considered by the NDRB. The applicant failed to provide documentary evidence to demonstrate his sobriety, positive community service, employment history, and clean police record. Relief is not warranted.

The applicant is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge. Representation at personal appearance hearing is recommended


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 95 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, violation of a lawful order, Article 111, drunken driving, Article 121, larceny, and 134, breaking restriction.
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      


Similar Decisions

  • USMC | DRB | 2002_Marine | MD02-00462

    Original file (MD02-00462.rtf) Auto-classification: Denied

    The Naval Discharge Review Board (NDRB) also advised that the board first conducts a documentary review prior to any personal appearance hearing. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.980921: NJP for violation of UCMJ, Article 92: Having knowledge of a lawful order issued by the Battalion Commander and signed by SNM, to refrain from alcoholic beverages, and order in which it was his duty to obey, did, on board Camp...

  • NAVY | DRB | 2004 Marine | MD04-00199

    Original file (MD04-00199.rtf) Auto-classification: Denied

    The Applicant requests the characterization of service received at the time of discharge be changed to honorable. Thanks in advance for your thoughtful consideration.” Documentation In addition to the service record (there was NO DISCHARGE PACKAGE AVAILABLE), the following additional documentation, submitted by the Applicant, was considered:Copy of Time Sheet from Morgan County CommissionHandwritten Listing of ReferencesCopies of DD Form 214 (2) Copy of Discharge Accountability Summary...

  • NAVY | DRB | 2003_Navy | ND03-00234

    Original file (ND03-00234.rtf) Auto-classification: Denied

    I was on restriction and told I was going to CCU, but at that point I really couldn’t and didn’t want to. 000316: NJP for violation of UCMJ, Article 86: Did on or about 0705 hours, 000315, without authority, fail to go at the time prescribed to her appointed place of duty to wit: Restricted Muster; violation of UCMJ, Article 92: (2 Specifications), Spec 1: Having knowledge of a lawful order issued by OM2 R_ Z_, to wit: To leave the Polarisville berthing trailer and stay within the...

  • NAVY | DRB | 2003_Navy | ND03-00518

    Original file (ND03-00518.rtf) Auto-classification: Denied

    The Applicant requests the characterization of service received at the time of discharge be changed to honorable. PART I - APPLICANT’S ISSUES AND DOCUMENTATION Documentation In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:None PART II - SUMMARY OF SERVICE Prior Service (component, dates of service, type of discharge): Inactive: USNR (DEP) 880622 - 880628 COG Active: USN None Period of Service Under Review :Date of...

  • NAVY | DRB | 2001_Navy | ND01-00432

    Original file (ND01-00432.rtf) Auto-classification: Denied

    ND01-00432 Applicant’s Request The application for discharge review, received 010222, requested that the characterization of service on the discharge be changed to honorable. Sentence: Confinement for 6 months.950429: Applicant to confinement.950807: Applicant from confinement.951011: Commanding Officer, Naval Air Station, Pensacola, FL notified applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of a serious...

  • USMC | DRB | 2001_Marine | MD01-00670

    Original file (MD01-00670.rtf) Auto-classification: Denied

    PART I - APPLICANT’S ISSUES AND DOCUMENTATION Sentence: Confinement for 60 days, Forfeiture of $639.00 pay per month for 2 months, and a bad conduct discharge. PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW Discussion The applicant was discharged on 000823 with a bad conduct discharge which was the sentence adjudged by a properly constituted special court martial that was determined to be legal and proper, affirmed in the legal chain of review and executed (A and B).

  • USMC | DRB | 2002_Marine | MD02-01058

    Original file (MD02-01058.rtf) Auto-classification: Denied

    Dear Chairperson:After a review of the Former Service Members (FSM) DD Form 293 Application for the Naval Discharge Review Board of Discharge or Dismissal from the Armed Forces of the United States and all of the evidence assembled for review, we continue to support the contentions as set forth by the Applicant, in his request that he be given the opportunity to upgrade his (Under Other Than Honorable Conditions) Discharge to a Honorable Discharge. The (FSM) conduct during that term of...

  • NAVY | DRB | 2000_Navy | ND00-01018

    Original file (ND00-01018.rtf) Auto-classification: Denied

    In the applicant’s issue 6, the Board In the applicant’s issue 8, the Board does not have the authority to grant “clemency.” The Board reviews the propriety (did the USN/USMC follow its own rules in processing the applicant for discharge) and equity (did the applicant receive a discharge characterization in keeping with the USN/USMC guidance or was the characterization typical of other service members being separated for the same reason) of each applicant’s discharge. At this time, the...

  • NAVY | DRB | 2003_Navy | ND03-01231

    Original file (ND03-01231.rtf) Auto-classification: Denied

    ND03-01231 Applicant’s Request The application for discharge review was received on 20030716. The Applicant requests the characterization of service received at the time of discharge be changed to honorable and the reason for the discharge be changed to “Reasons Satisfactory to SECNAV.” The Applicant requests a documentary record review. [EXTRACTED FROM SUPPORTING DOCUMENTS SUBMITTED BY THE APPLICANT.]

  • USMC | DRB | 2002_Marine | MD02-01274

    Original file (MD02-01274.rtf) Auto-classification: Denied

    MD02-01274 Applicant’s Request The application for discharge review, received 020903, requested that the characterization of service on the discharge be changed to general/under honorable conditions. The factual basis for this recommendation was due to Applicant having received non-judicial punishment on two separate occasions for disobeying a lawful order and under age drinking, a psychiatrist has provided a diagnosis of borderline personality disorder which could deteriorate into...