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USMC | DRB | 2002_Marine | MD02-00235
Original file (MD02-00235.rtf) Auto-classification: Denied


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

ex-PVT, USMC
Docket No. MD02-00235

Applicant’s Request
The application for discharge review, received 020109, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a documentary record discharge review. The applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020731. 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 (administrative discharge board required but waived), authority: MARCORSEPMAN Par. 6210.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1. My average conduct and efficiency rating/behavior and proficiency marks were good.

2. I received awards and decorations.

3. My record of promotions showed that I was generally a good service member.

4. I have been a good citizen since discharge.

5. My ability to serve was greatly impaired by my youth and immaturity.

6. Personal problems, at the time impaired my ability to serve.

Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Letter from Applicant
Copy of Civilian Evaluation Report (2pgs)
Employment history (2pgs)
Letter of Recommendation from E_ C. S_
Character Reference Letter from R_ L. S_
Reference Letter from B_ H_
Reference Letter from J_ H_, Academic Advisor, Heald College
Transcript (2pgs)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              None
         Inactive: USMCR(J)                891114 - 900326  COG

 Period of Service Under Review :
Date of Enlistment: 900327               Date of Discharge: 920326

 Length of Service (years, months, days):

         Active: 02 00 00
         Inactive: None

 Age at Entry: 20                          Years Contracted: 5

 Education Level: 12                        AFQT: 53

 Highest Rank: LCPL

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.0 (9)                       Conduct: 3.9 (9)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, Rifle Sharpshooter Badge

 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 (administrative discharge board required but waived), authority: MARCORSEPMAN Par. 6210.3.

 Chronological Listing of Significant Service Events :

900821:  Counseled for deficiencies in performance and conduct. [Poor judgement in the performance of duties.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

910820:  Counseled for deficiencies in performance and conduct. [Poor conduct during liberty hours, poor judgement, aiding abetting and contributing to the delinquency of a minor.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
911021:  Medical Officer diagnosed applicant as alcohol dependent.

 911026:  Counseled for deficiencies in performance and conduct. [Lack of motivation and poor performance of duties as a Plane Captain under training. Applicant’s unwillingness to follow instruction from NCO's and peers has caused his division an increased work load and is detrimental to this unit’s good order and discipline.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

911026:  Counseled for deficiencies in performance and conduct. [Late/UA from appointed place of duty on 911015, 911018, and again on 911024. His consistent absence and tardiness from the work center is not in keeping with the traditions and standard of the USMC and is detrimental to this unit’s mission.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

911104:  NJP for violation of UCMJ, Article 86: SNM did on or about 0700, 911031 absent himself from his appointed place of duty, to wit: VMA(AW)-224 MCAS IWAKUNI, Japan and did remain absent until on or about 0750, 911031.
 Awarded forfeiture of $400.00 pay per month for 2 months, reduction to E-2. Appealed 911106. Appeal denied 911119.
911203:  Discharged from Level III Alcohol Rehabilitation as a treatment failure as a result from drinking while in treatment.

911217:  Counseled for deficiencies in performance and conduct. [Failure of ARD Level III treatment by the willful consumption of alcohol during treatment.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

920113:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 92: Disobeying a lawful order on 911128 in Subic Bay, Republic of the Philippines. Charge II: violation of the UCMJ, Article 115: (2 Specs), Spec 1: Avoiding duties by intentionally injuring himself by drinking alcoholic beverages between 911015 and 911113 in Subic Bay, Republic of the Philippines; Spec 2: Intentionally injuring himself by drinking alcoholic beverages while undergoing Level III Alcoholic Rehabilitation on 911128 in Subic Bay, Republic of the Philippines. Charge III: violation of the UCMJ, Article 134: Incapacitated for the proper performance of his duties on 911128 in Subic Bay, Republic of the Philippines.
         Finding: to Charge I and the specification thereunder, guilty. To Charge II and specification 1 and 2 thereunder, guilty. To Charge III and the specification thereunder, guilty.
         Sentence: Confinement for 1 month, forfeiture of $587.00 pay per month for 1 month, reduced to E-1.
         CA action 920113: Sentence approved and, except for that portion extending to confinement will be executed. Service of the sentence to confinement was deferred effective 920113 and will not begin until 920121, unless sooner rescinded by competent authority.

920212:  Applicant declined to obtain Drug/Alcohol rehabilitation treatment from Veterans Administration medical facilities upon separation.

920227:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and alcohol abuse rehabilitation failure.
920227:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and alcohol abuse rehabilitation failure. The factual basis for this recommendation was applicant’s discreditable involvement with authorities during this enlistment as evidenced by a summary court-martial, 1 nonjudicial punishment, other adverse entries contained on page 11 of his service record, coupled with his failure/refusal to participate or cooperate in his own recovery.

920302:  Applicant advised of rights and having elected to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.
920309:  NJP for violation of UCMJ, Article 92: Failed to obey a regulation, GURO 11101.1, Regulation for Bks 4199, 4294, 4295 and 4312 dtd 900411, by wrongfully not signing a female guest into his quarters.
         Award: Forfeiture of $100.00 pay per month for 1 month, restriction for 15 days. Authorized a one time privilege of returning movies to 1 st Run video store on 920309 only. Authorized to make a personal hygiene run once a week for duration of restriction. Not appealed.

920319:  SJA review determined the case sufficient in law and fact.

920319:  GCMCA [Commanding General, 2d Marine Aircraft Wing] directed the applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and alcohol abuse rehabilitation failure.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 920326 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. Though they are below the average for all Marines, the applicant’s average performance and conduct markings met the standard required for an honorable characterization of service. However these evaluations are not the sole determinant for characterization of service. 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 nonjudicial punishment (NJP) on two occasions, one summary court martial and many adverse counseling entries on other occasions. 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 an honorable characterization of service. An upgrade to honorable would be inappropriate. It must be noted that most Marines serve honorably and well and therefore earn honorable discharges. In fairness to those Marines, commanders and separation authorities are tasked to ensure that undeserving Marines receive no higher characterization than is due. Relief denied.

Issues 2 and 3. The applicant’s record of awards and decorations do not sufficiently mitigate his misconduct to warrant an upgrade to his discharge. The applicant’s record of promotions and demotions suggest he was generally a substandard service member. Relief denied.

Issue 4. 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. 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. The applicant did not provide sufficient documentation to warrant an upgrade to his discharge. Relief denied.

Issues 5 and 6. The Board found that the applicant’s age, education level, and test scores qualified him for enlistment. While he may feel that his immaturity, youth, and other personal 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.

 The applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge. Legal representation at a personal appearance hearing is highly recommended but not required.

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 86, unauthorized absence; Article 92, failure to obey a lawful general order; Article 115, malingering; Article 134, incapacitation.
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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