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USMC | DRB | 2002_Marine | MD02-00812
Original file (MD02-00812.rtf) Auto-classification: Denied


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

ex-PVT, USMC
Docket No. MD02-00812

Applicant’s Request
The application for discharge review, received 020515, 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 did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030221. 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. I, J_ H_ M_, respectfully request that my discharge be upgraded from current status: General under other than Honorable conditions, to General under Honorable conditions. I realize now the poor decisions I made in my personal life during my military career. I hope that my youth decision will not prevent me from attaining this most desirable upgrade. I'm in the process of getting my life together and decide to further my education. In requesting my upgrade I can utilize the G.I. Bill to pay for school since my job at the moment does not afford me to go. As far as the G.I. Bill is concern, during my military career, I contributed the appropriate funds for it. With this upgrade it will enable me to pursue and further my education to establish a long-term trade to enter into the workforce and be a productive citizen. I ask that whoever reviews this request take into consideration that I did serve three respectful years of service in the Marine Corps as an Air Traffic Control Radar Specialist. I thank you for your time and look forward to hearing from you.

 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: USMC              None
         Inactive: USMCR(J)                900531 - 901202  COG

 Period of Service Under Review :
Date of Enlistment: 901203               Date of Discharge: 940503

 Length of Service (years, months, days):

         Active: 03 05 00
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 79

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.3 (8)                       Conduct: 4.0 (8)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, LOA (2)

 Days of Unauthorized Absence: (1)931031-931101

 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 :

910716:  Counseled for deficiencies in performance and conduct (specifically, unprofessional behavior, lack of self-discipline and a cavalier attitude towards academic studies). Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

910812:  Counseled for deficiencies in performance and conduct (specifically, pattern of poor personal appearance and lack of the self-discipline). Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

910911:  NJP for violation of UCMJ, Article 92: At H&HS-90, MATSG-90, NATTC, NAS MFS, MILL, TN, on or about 910819, was derelict in the performance of his duties by failing to complete his assigned homework; violation of UCMJ, Article 92: At H&HS-90, MATSG-90, NATTC, NAS MFS, MILL, TN, on or about 910828, was derelict in the performance of his duties by failing to complete his assigned homework.
         Award: Forfeiture of $100.00 pay per month for 1 month, restriction for 35 days, reduction to E-1 (suspended for 6 months). No indication of appeal in the record.

930503:  Counseled for deficiencies in performance and conduct (specifically, failure to pay just debts, not present at appointed time, poor appearance in uniform (unshaven)). Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

930810:  Applicant recommended to attend Level II Alcohol Rehabilitation.

930827:  Applicant completes Level II Alcohol Rehabilitation; undergoes aftercare.

931129:  NJP for violation of UCMJ, Article 86: UA from 0800 on 931031 to 0800 on 931101 (1 day), from HQHQRON, MCAS Tustin, CA 92710.
         Award: Forfeiture of $456.00 pay per month for 2 months (suspended for 6 months), restriction for 60 days, reduction to E-2 (suspended for 6 months). No indication of appeal in the record.
931215:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct. The factual basis for this recommendation is the Applicant's two convictions at NJP and prior page 11 counseling entries.

931227:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27(b), elected to appear before an Administrative Discharge Board.

931228:  NJP imposed and suspended on 931129 for a period of 6 months is hereby vacated and the punishment is ordered executed.

931230:  NJP for violation of UCMJ, Article 86: UA (AWOL) from 2130 to 2315 on 931225, violation of UCMJ, Article 92: At HQHQRON, MCAS Tustin, CA 92710; at 2315 on 931225, knowingly failed to obey CO, HQHQRON, MCAS Tustin Restriction Orders of 931129, by being intoxicated.
         Award: Forfeiture of $407.00 pay per month for 2 months (suspended for 6 months), reduction to E-1. No indication of appeal in the record.
940103:  Commanding Officer, H&HS MCAS Tustin CA recommended to separa-tion authority that Applicant be discharged under other than honorable conditions by reason of misconduct due to a pattern of misconduct. Commanding Officer's comments: "PFC M_ has developed a pattern of misconduct and blatant disregard for military orders and regulations. This behavior is unacceptable and every attempt to correct it through counseling and NJP has been ineffective."

940112:  NJP imposed and suspended on 931230 for a period of 6 months is hereby vacated and the punishment is ordered executed.

940202:  SJA review determined the case sufficient in law and fact. SJA includes in this letter the Applicant's unconditional waiver of rights to an Administrative Discharge Board (undated) that was submitted after the Applicant had elected to appear before such a board on 931227.

940207:  GCMCA (Commander, Marine Corps Air Bases, Western Area) directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

940210:  Counseled on his VA rights for alcohol treatment as per Dir, JDACC ltr 5300 1BA8/30 of 940209, and elected to attend VA treatment in conjunction with discharge.

940321:  Applicant transferred from MCAS Tustin CA to Co G, 2d Bn, 23rd Marines, Los Alamitos, CA for alcohol treatment at Long Beach VA Hospital.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 940503 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: The Applicant contends that his youth and inexperience at the time of his enlistment mitigated his misconduct. Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question. The Board found no such error or inequity to have occurred during that time. Further, t he NDRB found credible evidence of misconduct in the service record of the Applicant. This misconduct did warrant processing for separation as initiated by the Applicant's command. The three nonjudicial proceedings, the three page 11 entries, the statements from the Applicant's Commanding Officer, and the review by legal authority all indicate the propriety and equity of the discharge process and t he Applicant’s discharge characterization accurately reflects his service to his country. Relief is therefore denied .
The Applicant further contends that he "did serve three respectful years of service in the Marine Corps as an Air Traffic Control Radar Specialist." The service record the Board reviewed did reflect good proficiency markings but the Applicant's job performance does not mitigate his misconduct.

The following is provided for the edification of the Applicant. 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. However, the NDRB is authorized to consider post-service factors in the recharacteriza-tion of a discharge. 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. 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 verifiable documents that may be provided to receive consideration for relief based on post-service conduct. At this time, the Applicant has not provided such documentation for the Board to consider.

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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