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USMC | DRB | 2002_Marine | MD02-00710
Original file (MD02-00710.rtf) Auto-classification: Denied


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

ex-PFC, USMC
Docket No. MD02-00710

Applicant’s Request
The application for discharge review, received 020422, 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 030131. 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/INVOL DIS (BOARD WAIVED) (PATTERN OF MISCONDUCT), authority: MARCORSEPMAN Par. 6210.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1. I am writing the review board today asking to have my discharge upgraded to honorable, although I know my performance was not 100% Professional, I do believe it was not deserving of my discharge received and also there was some issues I will explain.

Shortly after I got to my duty station, Camp Pendleton, CA. I hyper extended my right knee doing Pt with my unit. Which intern tore 2 ligaments out? I was placed on bed rest for a couple days and then light duties for about 3 months. Then I went back to doing P/T again but my knee hurt very badly and could not do it. The naval hospital places me back on light duty and then did reconstructive surgery to fix it. Then, of coarse I was on light duty, rehabilitation & Physical Therapy.

Well, in the mean time, I guess to keep me out of the way, they put me in one of there government fueling sites. (Gas station) There was no need for me to be there. I didn't have to do anything, just sit there for 10 hrs a day. Sometimes I couldn't go get lunch because they wouldn't let me go until I was relieved. Well allot of times, I was not relieved. Then at 6:00 pm I could lock up and go to the barracks.

I had to walk back to the Barracks. They wouldn't send anyone down to pick me up, although it was on the way. I used to watch all their cars drive by, and when I saw the GySgt, he was always the last one to leave, and I would lock up and start walking. With my leg in an immobilize and on crutches. It was the same thing when I was doing my Physical Therapy, the GySgt wouldn't let anyone take me, sometimes one of the civilians that worked there would take me, but most o the time I had to use the bus system, had to pay the bus fare, and bare the pain of transferring from bus to bus, it was a 45 min ordeal when it could have been just 10-15 min if someone would have taken me. After all, I broke it doing P/T with them. I always though Marines took care of each other, but I guess it depend who you are. Then, as luck would have it, one year later, I did the same thing to my left knee, and it was the same story all over again. I guess I was just angry all the time, I had lost interest in being in the Marine Corp and I just didn't care anymore. I the turned to alcohol for stress relief. Which was a mistake. I became an alcoholic and things really started going wrong. I was late to formations for field day and other functions.

My uniforms didn't fit right because I couldn't P/T and because of the beer, I had pt on some weight and I didn't have the money to get them fitted or buy new ones. This alcohol problem carried over to my post-service life as well, but I recognized the problem and got help through AA classes and counselors. I have been sober almost 2 yrs now. But through all of this, one good thing happened, I met my wife on Camp Pendleton. We recently celebrated our 7 th anniversary, and have 2 young boys. I have turned my life around; have a good job and getting ready to buy a house. What is done is done and it is a part of my past, but I would like to be a little more proud of my service, although it was less than expected.

Thank you for your time and consideration, I hope you will find me worthy of a discharge upgrade, it would mean allot to me. Thank you Sincerely

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Statement from Applicant
Job reference from terminal manager, Dennis Truck Lines of Ohio, Inc. dated May 9, 2002
Certificate of completion dated March 19, 1997
Certificate of achievement dated March 19, 1997
Certificate of achievement dated March 19, 1997
Applicant's DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                901215 - 910923  COG

 Period of Service Under Review :
Date of Enlistment: 910924               Date of Discharge: 941221

 Length of Service (years, months, days):

         Active: 03 02 28
         Inactive: None

 Age at Entry: 18                          Years Contracted: 6

 Education Level: 12                        AFQT: 50

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.2 (9)                       Conduct: 4.0 (9)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

 Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/INVOL DIS (BOARD WAIVED) (PATTERN OF MISCONDUCT), authority: MARCORSEPMAN Par. 6210.3.

 Chronological Listing of Significant Service Events :

930709:  Counseled for deficiencies in performance and conduct. [Lack of maturity, judgment and conduct unbecoming a Marine. Performance is less than expected of a Marine. Initiative and professionalism have been of a discreditable nature failing to demonstrate the leadership qualities of a Marine.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
930811:  NJP for violation of UCMJ, Article 111:
 Specification: Violate BO 5101.3P by operating a motor vehicle while under the influence of alcohol, with a Blood Alcohol Content of 0.056% on 0111, 930802.
Awarded forfeiture of $400.00 per month for 2 months, restriction and extra duties for 45 days, reduction to PFC. Reduction suspended for 6 months. Not appealed.
930823:  Applicant place on light duty for 30 days and convalescent (sick) leave for 30 days (post-knee surgery).

 931006:  Applicant to appear before a medical board.

 931008:  Counseled for deficiencies in performance and conduct. [Alcohol related incident, specifically, DUI with a BAC of .05%.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
931115:  NJP for violation of UCMJ, Article 92:
 Specification: Failure to go at the time prescribed to appointed place of duty on 0730, 941101, to wit: Navy Alcohol/Drug Safety Action Program.
Awarded forfeiture of $233.00 per month for 1 month, restriction and extra duties for 14 days. Forfeiture suspended for 6 months. Not appealed.
940112:  NJP for violation of UCMJ, Article 86:
 Specification: Absence from place of duty on 0730 to 0930, 93122, to wit: ADNCO.
Awarded forfeiture of $238.00 per month for 1 month, restriction and extra duties for 14 days. Forfeiture suspended for 6 months. Not appealed.
940128:  Vacate forfeiture of $238.00 awarded at CO's NJP dated 940112.

940128:  NJP for violation of UCMJ, Article 134:
 Specification: Break restriction on 1830, 940113.
Awarded forfeiture of $238.00 per month for 1 month, restriction and extra duties for 14 days. Forfeiture suspended for 6 months. Not appealed.
940215:  Applicant informed eligible but not recommended for promotion to Corporal for the month of March due to NJP.

940714:  Counseled for deficiencies in performance and conduct. [Violating Article 92, unlawfully parking a government vehicle at an MCX.] Sources of assistance provided, disciplinary and discharge warning issued.
940714:  Counseled for deficiencies in performance and conduct. [Violating general orders and or regulations. Article 92, Article 86 UA.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
940725:  Applicant was evaluated and will appear before a medical board. Diagnosis: Acute left anterior cruciate ligament tear, medial meniscus tear left knee. Limitations: No prolonged walking, standing, running, no PFT, field exercise, not deployable, may PT at own pace.
941101:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions and a pattern of misconduct.
941102:  Applicant advised of his rights and having consulted 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.

 941116:  NJP for violation of UCMJ, Article 111:
 Specification: Operate a motor vehicle while drunk on 940825.
Awarded reduction to PFC and forfeiture of $932.00. Not appealed.
941117:  Commanding Officer recommended discharge under honorable conditions (general) by reason of misconduct due to minor disciplinary infractions and misconduct due to a pattern of misconduct. The factual basis for this recommendation was five nonjudicial punishments and two page 11 counseling entries which evidenced misconduct.

941205:  SJA review determined the case sufficient in law and fact.

941205:  GCMCA [Commanding General, Marine Corps Base, Camp Pendleton, CA] directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

941221:  Separation physical: Summary of defects: Medical: 1. Snoring. 2. Alcoholism. Surgery/Ortho: Bilat knee anterior cruciate ligament tear. Right knee - reconstructive. Left knee - refused surgery at this time.
950125:  PEB Notification of Decision: No finding shall be recorded for the reason of discharged under other than honorable conditions.
PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 941221 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 nonjudicial punishment (NJP) on five occasions and adverse counseling entries on other occasions. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his 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. 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.

Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question. No such error or inequity is evident 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.

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. Representation at a personal appearance hearing is 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 111, drunken driving; and Article 134, break 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      


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