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USMC | DRB | 2001_Marine | MD01-00877
Original file (MD01-00877.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD01-00877

Applicant’s Request
The application for discharge review, received 010619, requested that the characterization of service on the discharge be changed to honorable or general/under honorable conditions. The applicant requested a personal appearance discharge review before a traveling panel. 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, D.C. area. Subsequent to the application, the Board converted the case to a documentary review since applicant failed to respond to the Scheduling Notice. Applicant is not eligible for further review by this Board.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020912. 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 (admin discharge board required but waived), authority: MARCORSEPMAN Par. 6210.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1. I was told that I would receive an honorable or general discharge due to failure of alcohol rehabilitation. I was induced to stay on active duty by my company commander and this led to my other than hon. Discharge. I believe I was a victim of the fact that I was not properly administratively discharged as originally anticipated.

 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):
         Active: None
         Inactive: USMCR(J)                870604 - 870611  COG

 Period of Service Under Review :
Date of Enlistment: 870612               Date of Discharge: 890531

 Length of Service (years, months, days):

         Active: 01 11 20
         Inactive: None

 Age at Entry: 23                          Years Contracted: 4

 Education Level: 12                        AFQT: 35

 Highest Rank: PFC

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.1 (6)                       Conduct: 3.5 (6)

 Military Decorations: None

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

 Days of Unauthorized Absence: 18

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct-Pattern of misconduct (admin discharge board required but waived), authority: MARCORSEPMAN Par. 6210.3.

 Chronological Listing of Significant Service Events :

880219:  Counseled for deficiencies in performance and conduct. [Irresponsibility with regard to an excess purchase of alcoholic beverages.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
880316:  Applicant diagnosed as alcohol dependent.

 880411:  Applicant admitted to Alcohol Rehabilitation Department for Level III treatment. Admission diagnosis: Alcohol dependence.

880516:  Applicant discharged from ARD. Discharge Diagnosis: Alcohol dependence, active. Disposition: Discharged to full duty with a poor prognosis.
880606:  NJP for violation of UCMJ, Article 86 and 92:
 No further information found in service record.
Awarded forfeiture of $175.00 per month for 1 month, restriction and extra duties for 14 days. Not appealed.
880606:  Counseled for deficiencies in performance and conduct. [Violation of rules and regulations. Recent NJP for violating the HQBTRY liberty risk program.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
880630:  Summary Court-Martial.
         Charge I: Violation of the UCMJ, Article 121.
         Specification: Wrongfully appropriate a 35mm camera on 2310, 4Jun88.
         Charge II: Violation of the UCMJ, Article 128:
         Specification: Assault LCpl on 4Jun88 by head-butting him in the face.
         Finding: to Charge I and the specification thereunder, guilty, to Charge II and the specification thereunder, not guilty.
         Sentence: Forfeiture of $150.00, confinement for 20 days, reduced to Pvt.
         CA action 880714: Sentence approved and ordered executed.

880630:  Applicant to confinement.

880716:  Applicant from confinement.

 890216:  NJP for violation of UCMJ, Article 86:
 Specification: Unauthorized absence from 0731, 25Jan89 to 0710, 13Feb89 (18 days/surrendered).
Awarded forfeiture of $350.00 per month for 2 months, restriction and extra duties for 30 days, reduction to Pvt. Forfeiture of $350.00 for 2 months and restriction and extra duty for 11 days suspended for 6 months. Not appealed.
890308:  Vacate suspended forfeiture, restriction and extra duty awarded at NJP 890216.
890419:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.
890421:  Applicant advised of 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.

890421:  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 a summary court-martial of 30 June 1988, and his nonjudicial punishments of 6 June 1988 and 16 February 1989, and adverse page 11 entries of 19 February 1988 and 6 June 1988.

890516:  SJA review determined the case sufficient in law and fact.

890516:  GCMCA [Commanding General, 2d Force Service Support Group, Fleet Marine Force, Atlantic] 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 890531 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. A characterization of service of under other than honorable conditions is warranted when the member's conduct constitutes a significant departure from that expected of a Marine. T he applicant’s service was marred by award of two non-judicial punishments, a summary court-martial, and negative counseling entries. 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 the naval service, and falls short of that required for a characterization of service under honorable conditions. The Board found no indication that the applicant was processed for discharge under honorable conditions. While he may feel that his company commander’s encouragement to remain on active duty was a factor that contributed to his actions, 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. An upgrade would be inappropriate. Relief denied.

 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. Relief not warranted.


Pertinent Regulation/Law (at time of discharge)

 A. Paragraph 6210, MISCONDUCT , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16C), Change 4, effective 29 Jul 87 until 26 Jun 89.

 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 121, larceny.
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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