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USMC | DRB | 2001_Marine | MD01-00329
Original file (MD01-00329.rtf) Auto-classification: Denied


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

ex-PFC, USMC
Docket No. MD01-00329

Applicant’s Request
The application for discharge review, received 010124, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a personal appearance hearing before the traveling panel closest to Tucson, Ariz. The applicant did not list any representative on the DD Form 293. In the acknowledgement letter to the applicant, he was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington DC area. Subsequent to the application, applicant obtained representation from the Disabled American Veterans. Subsequent to the application, the applicant converted the case to a records review.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020320. 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-Pattern of misconduct (with admin discharge board), authority: MARCORSEPMAN Par. 6210.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1. In 1983, while in the service of this country. I sustained an injury to my lower back which has proceeded now to a level that I cannot manage. Walking standing even sitting subject me to pain at a nearly crippling level. Also while in the service, my mental and emotional status started one rapid decline leading to heavily drinking and behavioral activities which were detrimental to a happy and healthy lifestyle and leading me to a suicide attempt as well as constant suicidal thoughts and obsessing. All of this began in my service to this country, and the nature of my discharge is preventing me from gaining progress in my endeavors. Please see attached documents.

Applicant marked the box "I HAVE LISTED ADDITIONAL ISSUES AS AN ATTACHMENT TO THIS APPLICATION." None were found.
2. Dear Chairperson:

After a review of the Former Service Members (FSM) DD Form 293 Application for Review Of Discharge Or Dismissal From the United States Armed Forces 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 given the opportunity to have his Discharge up graded from Under Other than Honorable Conditions to Honorable. (FSM) joined the United States Marine Corp on August 08,1978 until January 11,1982 where he served with several minor mis-conduct infractions as well as two judicial punishments during his second enlistment. The (FSM) seeks to up grade his Discharge to receive equitable relief to secure medical treatment I for disability incurred while on military duty. This (FSM) served a period of nearly (3) years without incident or any other action to warrant any corrective respond to be taken by his superiors. We ask for the Boards careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision. These issues do not supersede any issues previously submitted by the applicant. Respectfully,
Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Character reference dated August 16, 2000
Character reference from applicant's sister
Character reference from applicant's mother dated January 8, 2000
Character reference dated January 13, 2000
Character reference, unsigned and undated
Copy of DD Form 214
Copy of DD Form 214 from previous enlistment
Nine pages from applicant's service record
Letter from applicant
Character reference dated January 7, 2002
Certificate from SATP dated January 11, 2000
Copy of certificate of training dated October 19, 1999

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              780801 - 820111  HON
         Inactive: USMCR(J)                771222 - 780731  COG

 Period of Service Under Review :
Date of Enlistment: 820112               Date of Discharge: 851217

 Length of Service (years, months, days):

         Active: 03 11 06
         Inactive: None

 Age at Entry: 21                          Years Contracted: 4

 Education Level: 12                        AFQT: 81

 Highest Rank: Sgt

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.3 (9)                       Conduct: 4.1 (9)

 Military Decorations: None

 Unit/Campaign/Service Awards: GCM, Letter of Appreciation (2), SSDR, SSVCR

 Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct-Pattern of misconduct (with admin discharge board); authority: MARCORSEPMAN Par. 6210.3.

 Chronological Listing of Significant Service Events :

830811:  Counseled for deficiencies in performance and conduct. [Responsibilities and demeanor expected of a Marine NCO.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
830908:  Counseled for deficiencies in performance and conduct. [Personal hygiene, setting an example for junior enlisted Marines, and cleanliness of room in BEQ.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
831004:  Counseled for deficiencies in performance and conduct. [Relief as a Watch Supervisor due to his poor attitude, professional indifference, unsat personal hygiene and BEQ cleanliness, and inappropriate example set for junior Marines.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
831021:  NJP for violation of UCMJ, Article 86:
 Specification: Fail to be at his appointed place of duty on 0630, 12Oct83, to wit: PFT field for a PFT.
Awarded forfeiture of $50.00 per month for 1 month, restriction and extra duties for 7 days. Not appealed.
831102:  NJP for violation of UCMJ, Article 92:
 Specification: Violate a lawful written order on 2200, 24Oct83, to wit: drinking alcoholic beverages in building 1216 while still on restriction musters.
Violation of UCMJ, Article 134:
Specification: Break restriction on 2220, 24Oct83.
Awarded forfeiture of $50.00 per month for 2 months, restriction for 21 days, reduction to Cpl. Not appealed.
840301:  Counseled for deficiencies in performance and conduct. [Cautioned concerning operation of a motor vehicle after consuming alcoholic beverage, which resulted in civilian police citation for failure to control the vehicle.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
840319:  Authority granted for formal treatment of applicant's diagnosis of alcohol dependence.
840615:  NJP for violation of UCMJ, Article 92:
 Specification: Fail to obey lawful order on 14Jun84, to wit: to take the earring out and leave it out.
Awarded extra duties for 20 days, reduction to LCpl. Appealed. Appeal denied on 840712.
840619:  Counseled for deficiencies in performance and conduct. [Personal hygiene, which is unsatisfactory, my personal appearance in uniform which is unsatisfactory and the poor example I set for the junior Marines in my section. Uniform regulations pertaining to the wearing of earrings in civilian attire. Numerous problems of properly complying with Marine Corps standards of conduct, unauthorized absence, alcohol abuse, poor personal hygiene and poor leadership which has resulted in several official counselings and three NJP's in the last year and is establishing a pattern of misconduct.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
850725:  Counseled for deficiencies in performance and conduct. [DWI on MCAS Yuma on 19 July 1985.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
850731:  NJP for violation of UCMJ, Article 111:
 Specification: Operate a vehicle while drunk on 0240, 19Jul85.
Awarded forfeiture of $250.00 per month for 2 months, restriction and extra duties for 14 days, reduction to PFC. Appealed. Appealed denied 850812.
850805:  Applicant's driving privileges aboard any military installation revoked for one year commencing 29Jul85 and terminating 28Jul86.
850912:  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 numerous counselings and nonjudicial punishments.

850912:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.
850919:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
851126:  SJA review determined the case sufficient in law and fact.

851204:  GCMCA [Commander, Marine Corps Air Bases, Western Area] directed the applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

Administrative discharge board not found, if conducted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 851217 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).

Issue 1. The Board’s charter limits its review to a determination on the propriety and equity of the discharge. While he may feel that his emotional problems were factors that contributed to his actions, the record clearly reflects his willful disregard for the requirements of military discipline and demonstrated that he was unfit for further service. The record is devoid of evidence that the applicant was not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.

Issue 2. The Veterans Administration determines eligibility for post-service benefits, not the NDRB. There is no requirement or law that grants recharacterization solely on the issue of obtaining veterans’ benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.

The applicant’s discharge characterization accurately reflects his service to his country. The discharge was proper and equitable. Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question. No such error or injustice occurred during the applicant’s enlistment. Additionally, 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 the service. However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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. 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. Evidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs, are examples of verifiable documents that should have been provided to receive consideration for relief, based on post-service conduct. The applicant did not provide sufficient documentation to warrant an upgrade to his discharge. Relief denied.


Pertinent Regulation/Law (at time of discharge)

 A. Paragraph 6210 MISCONDUCT , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16C), Change 2, effective 15 Apr 84 until 28 Jul 87.

 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 86, unauthorized absence; Article 92, failure to obey a lawful general order; Article 111, drunk driving; Article 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 “ afls10.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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