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USMC | DRB | 2002_Marine | MD02-00754
Original file (MD02-00754.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD02-00754

Applicant’s Request
The application for discharge review, received 020502, 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. Subsequent to the application, the Applicant obtained representation from the American Legion.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030311. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the 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

[From Applicant's statement]
1. Ten years have gone by. I have completed college, and I am raising a family. I just wish to have an upgrade so that it can be off my record. I have no arrests or convictions. I only want to have the upgrade. I will even wave any Honorable Rights I may have as a result of the upgrade. Thank you for your time.

Sincerely, [Applicant]

[From American Legion statement]
2. (Equity Issue) This former member 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:
None

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                900815 - 900820  COG

 Period of Service Under Review :
Date of Enlistment: 900821               Date of Discharge: 910701

 Length of Service (years, months, days):

         Active: 00 10 11
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4

 Education Level: 12                        AFQT: 59

 Highest Rank: PFC

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.2 (2)                       Conduct: 3.6 (2)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

 Days of Unauthorized Absence: 7: (1)910220; (2)910227-910228;
         (4)910404-910407;
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 :

910122:  Counseled for deficiencies in performance and conduct (Adjustment disorder with depression and strong desire to quit Marine Corps. Possible personality disorder. Inability to complete assigned tasks). Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
910125:  Medical Record: Diagnostic Impression: Axis I: ETOH [alcohol] dependence. Axis II: R/O borderline personality disorder. Recommendation: 1) Level III treatment for alcohol dependence. 2) Evaluate for personality disorder or other psychological diagnosis during level III treatment.
910128:  Counseled for deficiencies in performance and conduct (Failed to conform to good order and discipline as established by the UCMJ. This failure to conform has resulted in the Applicant being UA from his appointed place of duty. Drinking under age off station, requested fitness for duty 910128 to wit, his blood alcohol content was .034. Applicant diagnosed to be alcohol dependent). Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
910206:  Applicant refused Level III treatment.

 910322:  NJP for violation of UCMJ Article 92: Refuse a lawful order on 910206, to wit: to attend Level III treatment, violation of UCMJ Article 86 (2 specs): (1) Absent from appointed place of duty at 1800 on 910220 until 2345 on 910221 (1 day), to wit: EMI at Bldg 1641 and phone watch at Bldg 1641, (2) Unauthorized absence from 0631 on 910227 until 1400 on 910301 (2 days).
         Award: Forfeiture of $100 per month for 1 month, restriction and extra duty for 25 days. No indication of appeal in the record.
910322:  Counseled for deficiencies in performance and conduct (Found guilty at Company NJP of Article 92, to wit: refused to attend Level III treatment and Article 86). Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

910404:  Applicant to unauthorized absence from 0501 on 910404 until 1300 on 910408 (4 days/surrendered).

910410:  NJP for violation of UCMJ Article 86: Absent from appointed place of duty at 0730 on 910325, to wit: FROC class 20-91.
         Award: Restriction and extra duty for 30 days, reduction to Pvt. No indication of appeal in the record.
910410:  Counseled for deficiencies in performance and conduct (Office hours for Article 86 on 9120325 and 910405-910408). Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
910423:  Counseled for deficiencies in performance and conduct (Being recom-mended for an administrative discharge for pattern of misconduct). Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
910614:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of alcohol rehabilitation failure and misconduct due to a pattern of misconduct.
910617:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27(b), elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

910617:  Commanding officer recommended discharge under other than honorable conditions by reason of alcohol rehabilitation failure and misconduct due to a pattern of misconduct. The factual basis for this recommendation was the Applicant's failure to conform to the standards of the Marine Corps. Commanding Officer comments: "On 6 February 1991, you refused orders to attend Level III alcohol rehabilitation treatment. On 22 March 1991, you received nonjudicial punishment for violation of Articles 86 and 92, Uniform Code of Military Justice: Absence from your appointed place of duty, unauthorized absence for 1 day, and disobedience of a lawful order. On 10 April 1991, you received nonjudicial punishment for violation of Article 86, Uniform Code of Military Justice: Absence from your appointed place of duty. Due to your refusal to attend Level III alcohol rehabilitation treatment, your continued misconduct and disregard for military authority, I have determined you no longer possess potential for further service, and accordingly, your retention is not warranted."

910624:  SJA review determined the case sufficient in law and fact. SJA stated to the separation authority that misconduct, specifically a pattern of misconduct, is the most appropriate basis for discharge.

910625:  GCMCA (Commanding General, Marine Corps Air Ground Combat Center, Twentynine Palms, CA) 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 910701 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).

Issues 1 and 2: The Applicant and his counsel contend that since being discharged, the Applicant's post-service conduct, including continued education, family stability, and non-involvement with civil authorities, warrant an upgrade to his characterization of service. The NDRB is authorized to consider post-service factors in the recharacteri-zation of a discharge even though there is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct in the civilian life subsequent to leaving the service. Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understand-ing of the Applicant's performance and conduct during the period of service under review may be considered. Verifiable proof of 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, and certification of non-involvement with civil authorities are examples of documents that may be provided to the Board to receive consideration of relief based on post-service conduct. At this time, the Applicant has not provided such documentation for the Board to consider. Relief is therefore denied.

Additionally, the Board, under its responsibility to examine the propriety and equity of an Applicant's discharge, will change the reason for discharge if an error or inequity exists within the Applicant's period of enlistment. The Board found that no such error or inequity occurred during that time and that the Applicant’s discharge characterization accurately reflects his service to his country. Relief on this basis is 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. 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 92, Failure to obey order or regulation.
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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