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USMC | DRB | 2003_Marine | MD03-00574
Original file (MD03-00574.rtf) Auto-classification: Denied


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

ex-LCpl, USMC
Docket No. MD03-00574

Applicant’s Request
The application for discharge review was received on 20030212. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests 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 by the American Legion.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040212. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB. 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 – Commission of a serious offense (all other) with admin discharge board, authority: MARCORSEPMAN Par. 6210.6.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

1. “I am sending a copy of my DD-214 to help expedite matters. Also a copy of my second Honorable Discharge to prove I have more than one. My first one resides at my mams house. I’m furnishing a copy of my meritorious mast to show not all of my awards are printed on my DD-214 as they should be. Also so the board would know that my career in the Corp was not an easy and plain ride. But something I worked hard for and wanted. Something I enjoyed and missed very much.
Enclosed is also a character reference from a MSGT. To show that I had earned the respect of my senior STAF personnel and peers. I don’t make excuses on what happened to my career and me. But certain events in my life play a part in helping me destroy my career. My grandmother passed away which was the first death in my family and I could not make the funeral. My wife left me and took my daughter away with another man. I had no one to turn to but drinking. Drinking enhanced a don’t care attitude and I went right down the drain.

I’m 3-years sober now and have a good paying job. But I can’t get on with my life knowing that I still have an Other than Honorable that follows me and came from an organization that I love so much. I humbly asked that you would please grant me an up grade to Honorable.

Sincerely,

M_ R_ (Applicant) USMC”

Additional issues submitted by Applicant’s counsel/representative (American Legion):

“2. (Equity Issue) Based on the favorable comments and recommendations of his senior non-commissioned officers and arguments put forth by his Detailed Defense Counsel and dissenting Administrative Discharge Board member, this former member proffers that his characterization of discharge too harsh and warrants correction to show separation under honorable conditions.

3 (Equity Issue) This former member further 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 the application. ”






 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Two pages from Applicant’s service record
Character reference (unreadable)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR(J)                830618 - 840614  COG
         Active: USMC              840615 - 880526  HON
                  USMC             880527 - 920224  HON


 Period of Service Under Review :
Date of Enlistment: 920225               Date of Discharge: 930310

 Length of Service (years, months, days):

         Active: 01 00 16
         Inactive: None

 Age at Entry: 17                          Years Contracted: 3

 Education Level: 12                        AFQT: 44

 Highest Rank: Sgt

 Final Enlisted Performance Evaluation Averages : Enlisted performance reports were available to the Board for review

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, GCM with 1 Star, MM

 Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct-Commission of a serious offense (all other) with admin discharge board, authority: MARCORSEPMAN Par. 6210.6.

 Chronological Listing of Significant Service Events :

920324:  NJP for violation of UCMJ, Article 86:
 Specification: Failed to go to appointed place of duty on 0730, 920319.
Awarded forfeiture of $295.00 per month for 1 month. Forfeiture suspended for 4 months. Not appealed.
920728:  NJP for violation of UCMJ, Article 134:
 Specification: Drunk and disorderly on 1400, 920704.
Awarded forfeiture of $608.00 per month for 2 months, restriction for 45 days, reduction to Cpl. Appealed. Decision on appeal not found.
920805:  Counseled for deficiencies in performance and conduct. [Driving under the influence of alcohol.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

920820:  CSAAC evaluation: ETOH dependence. Recommend Level III treatment.

920826:  Applicant declined VA treatment in conjunction with discharge.

920922:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions, misconduct due to a pattern of misconduct and misconduct due to the commission of a serious offense.
921001:  Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
921007:  Commanding Officer recommended discharge under other than honorable conditions by reason of minor disciplinary infractions, a pattern of misconduct and misconduct due to the commission of a serious offense. The factual basis for this recommendation was your two nonjudicial punishments and your conviction within the State of California on 5 May 1992 for violation of the California Penal Code, Section 23152(a), driving under the influence.

921119:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the allegation of misconduct due to minor disciplinary infractions is not supported by a preponderance of the evidence, and found that the Applicant had committed misconduct due to a pattern of misconduct and misconduct due to the commission of a serious offense, that the misconduct warranted separation, and by a vote of 2 to 1 recommended discharge under other than honorable conditions.

921122:  Counseled for deficiencies in performance and conduct. [Domestic violence.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

930204:  SJA review determined the case sufficient in law and fact.

930209:  GCMCA [Commander, 1 st Force Service Support Group, Camp Pendleton, CA] directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19930310 under other than honorable conditions for misconduct due to the commission of a serious offense (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. 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, a civil conviction and an adverse counseling entry on another occasion. 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 Board found that the positive aspects of the Applicant’s record, the personal misfortunes that occurred during the enlistment under review and the Applicant’s alcohol dependence do not mitigate his misconduct. Relief denied.

Issue 3. The Applicant’s discharge characterization accurately reflects his final period of service to his country. The discharge was proper and equitable. 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 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 111, drunk driving; and Article 134, drunk and disorderly.
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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