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USMC | DRB | 2001_Marine | MD01-00713
Original file (MD01-00713.rtf) Auto-classification: Denied


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

ex-PFC, USMC
Docket No. MD01-00713

Applicant’s Request
The application for discharge review, received 010430, 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 designated the American Legion as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020118. 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 (verbatim)

1. My "other than honorable" discharge was not appropriate for the offenses I committed. Simply stated, my discharge was too severe and does not match the level of offense(s). I was never given more than non judicial punishment. I request my discharge be upgraded to General Under Honorable Conditions.

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

Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214 (2 copies)
Applicant's statement dated April 3, 2001
Character/job reference dated December 20, 2000
Copy of police record check dated January 19, 2001
Character reference dated December 19, 2000
Character reference dated December 2000
Copy of college course from Tyler Junior College
Copy of certificate from Target for November 2000

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                950609 - 960603  COG

 Period of Service Under Review :
Date of Enlistment: 960604               Date of Discharge: 990701

 Length of Service (years, months, days):

         Active: 03 00 28
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 68

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.0 (7)                       Conduct: 3.8 (7)

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR, AFEM (SA), NUC

 Days of Unauthorized Absence: 3

 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 :

970915:  Applicant informed eligible but not recommended for promotion to Cpl for the months of October/November/December due to substandard performance/lack of knowledge.

980107:  Applicant informed eligible but not recommended for promotion to Cpl for the months of February and March due to substandard performance/alcohol related incidents.

980203:  NJP for violation of UCMJ, Article 86:
 Specification: Absent from appointed place of duty 0600 - 1100, 2Feb98.
Violation of UCMJ, Article 92:
Specification: Violate a lawful order issued by BLT SACO, to wit: not to drink while on treatment.
Awarded forfeiture of $251.00 per month for 1 month, restriction and extra duties for 14 days. Not appealed.
980307:  Applicant informed eligible but not recommended for promotion to Cpl for the months of April, May, and June due to my recent NJP of 980203.

980609:  Applicant informed eligible but not recommended for promotion to Cpl for the months of July, August and September due to my lack of leadership.

980710:  NJP for violation of UCMJ, Article 86:
 Specification: Absent from appointed place of duty 2357, 29Jun98 to 2350, 30Jun98.
Violation of UCMJ, Article 90:
Specification: Willfully disobey a lawful order from LtCol on 2357, 29Jun98, to wit: not to stay out overnight in Thailand
Awarded forfeiture of $519.00 per month for 1 month, restriction for 60 days, reduction to PFC. Not appealed.
990121:  Counseled for deficiencies in performance and conduct. Driving under the influence of alcohol. Complete disregard to CSSAC and SACO recommendation. Pattern misconduct. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued
990302:  NJP for violation of UCMJ, Article 92:
 Specification: Fail to obey lawful order by wrongfully attempting to drive on Camp Pendleton on 1800, 19Feb99, to wit: revocation of base and California driving privileges.
Awarded forfeiture of $251.00 per month for 1 month, restriction and extra duties for 14 days. Forfeiture of $251.00, restriction and extra duty for 4 days suspended for 6months. Not appealed.
990311:  Applicant informed eligible but not recommended for promotion to LCpl for the months of April due to administrative separation.

990325:  Counseled for deficiencies in performance and conduct. [Failed alcohol rehabilitation treatment, which is a case that has been open since 970908. SNM's most recent alcohol incident was on 990111. He blew a 0.9 blood alcohol level. Your pattern of alcohol related incidents have developed into unacceptable behavior, and medical problem and it will not be tolerated.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued
990428:  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 six page 11's not recommending your for promotion, your two 6105 and your three NJP's.

990504:  Applicant informed eligible but not recommended for promotion to LCpl for the months of May due to recent NJP dated 990302 and suspended for 6 months.

990510:  Applicant informed eligible but not recommended for promotion to LCpl for the months of June due to recent NJP dated 990302 and suspended for 6 months.

990511:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.
990511:  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.

 990518:  NJP for violation of UCMJ, Article 92:
 Specification: Fail to obey a lawful written order on 0545, 8May99, issued by Base Bulletin, by having a female in his BEQ past the hours of 2200, to wit: females and dependents are allowed on regular working days from the hours of 1630 to 2200.
Awarded forfeiture of $251.00 per month for 1 month, restriction and extra duties for 14 days. Not appealed.
990621:  SJA review determined the case sufficient in law and fact.

990622:  GCMCA, Commander, 1 st Marine Division (Rein) 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 990701 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: “My "other than honorable" discharge was not appropriate for the offenses I committed. Simply stated, my discharge was too severe and does not match the level of offense(s). I was never given more than non judicial punishment. I request my discharge be upgraded to General Under Honorable Conditions.” The NDRB found the applicant’s service record demonstrated a pattern of misconduct according to regulations. The applicant had two NJP’s (9802 and 9807) followed by a separate counseling and discharge warning (9901). The applicant had his third NJP violating the counseling and discharge warning on 9903. The applicant’s issue that the “discharge was not appropriate for the offenses I committed. Simply stated, my discharge was too severe and does not match the level of offense(s)” is untrue. The applicant was found guilty at his first NJP for violation of UCMJ Article 92- a serious military offense. The Board disagrees that the discharge was too severe for the offenses committed and found the disciplinary action taken consistent with standards of good order and discipline required of the Armed Forces. Rather than abide by the regulations required of all Marines, the applicant continued his disregard for discipline with two additional NJP’s before being notified of discharge proceedings. The applicant’s final NJP occurred after he had been notified of his discharge proceedings. The NDRB found the Other Than Honorable discharge properly and equitably assigned. Relief is denied.

The applicant’s second issue states: “(Equity Issue) This former member further requests that the Board include provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this 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 Board did not find the applicant’s post service documentation to clearly demonstrate an inequity in the assignment of the discharge. Relief is not warranted.

The applicant remains 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 31 Jan 97 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.
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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