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USMC | DRB | 2003_Marine | MD03-00850
Original file (MD03-00850.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD03-00850

Applicant’s Request
The application for discharge review was received on 20030409. 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 from the Disabled American Veterans.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040312. 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-Pattern of misconduct (administrative discharge board required but waived), authority: MARCORSEPMAN Par. 6210.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

“1. Dear Sir or Mamma, I write to you today in request to upgrade my discharge. I feel that at age 17 I was a little dazzled by the recruitment process and was totally unaware of the seriousness I was about to partake. I have no argument over the training I received during my time in service. My concern is when I was having a difficult time dealing with a multitude array of different personalities with in myself and other people with mixed feelings of desperation and anxiety. I was young and nieve, I wasn’t mature enough and my parents should have not signed consent knowing that I was not mature enough for the responsibility of the military.”

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

“Issue 2: Equity regarding the character of discharge.

Issue 3: Upgrading Discharge based on Equity and Good conscience.

Issue 4: Based on the Applicant’s contentions, which are clearly stated on DD Form 293, which is of record, and an overview of the available records, it is important that the Board consider all contributory factors surrounding this case coupled with the impetuosity of his youth. Although infractions did constitute military misconduct he is not a criminal. Therefore, with all the evidence as set forth herein, we humbly request any and all reasonable doubt that has occurred be resolved in Favor of the Applicant and corrective action be take to upgrade the Applicant’s discharge. These issue do not supercede any prior issue.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Appointment of Veterans Service Organization as claimant’s representative, VA Form 21-22, dated May 12, 2003

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                870811 - 880801  COG

 Period of Service Under Review :
Date of Enlistment: 880802               Date of Discharge: 910517

 Length of Service (years, months, days):

         Active: 02 09 16
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 39

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.4 (5)                       Conduct: 3.4 (5)

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR, NDSM

 Days of Unauthorized Absence: 40

 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 :

891211:  Staff Psychologist, NH Okinawa recommended Level III treatment due to Applicant continuing to drink after completion of Level II. Potential risk for suicide given his continued use of alcohol. Applicant wants out of the USMC. Responsible for his actions.
         Diagnosis: Axis I: Adjustment disorder.
                           Alcohol abuse, strongly suspect dependence.
 Axis II: Mixed personality disorder with immature and
impulsive traits.
900730:  NJP for violation of UCMJ, Article 86:
 Specification: Unauthorized absence from 0730, 900703 to 900719.
Awarded forfeiture of $405.00 per month for 2 months (suspended for 6 months), restriction and extra duties for 45 days, reduction to PFC. Not appealed.
900807:  Vacate suspended forfeiture awarded at CO’s NJP dated 900730.

 900928:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 134 (3 specs):
         Specification 1: Wrongfully and willfully impersonate a commissioned officer of the USMC by publicly wearing insignia of a 2ndLt of the USMC.
         Specification 2: Break restriction on 0700, 0900, 1100, 1300, 1500, 1800, 2000, and 2145, 900811.
         Specification 3: Break restriction on 2000 and 2145, 900903.
         Finding: to Charge I and the specification thereunder, guilty.
         Sentence: Forfeiture of $482.00, reduced to E-1, confinement for 30 days.
         CA action 901009: Sentence approved and ordered executed.

 910103:  NJP for violation of UCMJ, Article 86 (3 specs):
 Specification 1: Absent from appointed place of duty from 0700, 901123 to 0700, 901124.
Specification 2: Absent from appointed place of duty from 1300 to 1455, 901203.
Specification 3: Absent from appointed place of duty 0700 to 0800, 901204.
Violation of UCMJ, Article 92 (2 specs):
Specification 1: Violate CCBul 1050 on 0440, 901118, to wit: fail to have proper authorization to be at TJ, Mexico.
Specification 2: Violate DetO P11101.1D by possessing alcohol in barracks.
Violation of UCMJ, Article 107:
Specification: False official statement on 0425, 901118.
Violation of UCMJ, Article 134 (2 specs):
Specification 1: Brought discredit upon the military on 0425, 901118.
Specification 2: Incapacitated for duty on 1530, 901203.
Awarded forfeiture of $376.00 per month for 2 months, restriction for 60 days. Not appealed.
910103:  Counseled for deficiencies in performance and conduct. [Failure to maintain Marine Corps standards by violating Articles 86 (2 specs), 92 (2 specs), 107, 134 (2 specs).] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
910314:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 86 (12 specs):
         Specification 1: Unauthorized absence from 0700, 910108 to 1445, 910201 (23 days/surrendered).
         Specification 2: Fail to go to appointed place of duty on 1300, 1500, 1800, 2000 and 2145, 910210, to wit: restriction.
         Specification 3: Fail to go to appointed place of duty on 0700, 1800, 2000, and 2145, 910211, to wit: restriction.
         Specification 4: Fail to go to appointed place of duty on 0700, 1800, 2000 and 2145, 910212, to wit: restriction.
         Specification 5: Fail to go to appointed place of duty on 0700, 1800, 2000, and 2145, 910213, to wit: restriction.
         Specification 6: Fail to go to appointed place of duty on 0700, 1800, 2000, 2145, 920214, to wit: restriction.
         Specification 7: Fail to go to appointed place of duty on 0700, 1800, 2000, and 2145, 910215, to wit: restriction.
         Specification 8: Fail to go to appointed place of duty on 1300, 1500, 1800, 2000, and 2145, 910216, to wit: restriction.
         Specification 9: Fail to go to appointed place of duty on 1300, 1500, 1800, 2000, and 2145, 910217, to wit: restriction.
         Specification 10: Fail to go to appointed place of duty on 0700, 1800, 2000, and 2145, 910218, to wit: restriction.
         Specification 11: Fail to go to appointed place of duty on 0700, 1800, 2000, and 2145, 910219, to wit: restriction.
         Specification 12: Fail to go to appointed place of duty on 1200, 910219, to wit: Co formation.
         Violation of UCMJ, Article 92:
         Specification: Violate a lawful general order, to wit: providing alcohol to a Private, a person under age of 21.
         Violation of UCMJ, Article 112A:
         Specification: Wrongfully use marijuana on 910109.
         Finding: to Charge I, II, and III and the specifications thereunder, guilty.
         Sentence: Forfeiture of $502.00, confinement for 30 days.
         CA action 910327: Sentence approved and ordered executed.

910402:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to drug abuse.
910402:  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.

910402:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern or misconduct and due to drug abuse. The factual basis for this recommendation was your failure to conform to the standards of the Marine Corps. On 30 July 1990 you received nonjudicial punishment for a violation of Article 86, Uniform Code of Military Justice: absent without leave from 3 July 1990 to 19 July 1990. On 28 September 1990, you were convicted by a Summary Court-Martial for violating Article 134, Uniform Code of Military Justice: you wrongfully and willfully impersonated a commissioned officer and went beyond the limits of your restriction. On 3 January 1991, you received nonjudicial punishment for violations of Articles 86, 92, 107 and 134, Uniform Code of Military Justice: three specifications of absence from appointed place of duty, violating Combat Center Bulletin 1050 by failing to obtain proper authorization to be at Tijuana, Mexico after hours, violating Detachment Order P11101.1D by possessing alcohol in the barracks; making a false official statement, and being incapacitated for your military duties. On 3 January 1991, you were formally counseled for failing to maintain Marine Corps standards. On 8 January 1991, you were absent without leave until 1 February 1991. On 15 March 1991, you were convicted by a Summary Court-Martial for violating Articles 86, 92, and 112A, Uniform Code of Military Justice: one specification of unauthorized absence from 8 January 1991 to 1 February 1991, 11 specifications of failing to go at the time prescribed to your appointed place of duty; violating a lawful general order by wrongfully providing alcohol to a person under the age of 21, and wrongfully using marijuana.

910426:  Medical evaluation for alcohol and drug abuse found the Applicant to be alcohol and THC dependent. Applicant declined treatment.

910430:  SJA review determined the case sufficient in law and fact.

910430:  GCMCA [Commanding General, 1 st Force Service Support Group] 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 19910517 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 1-4. 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. The Applicant’s service was marred by award of nonjudicial punishment (NJP) on two occasions and two summary courts-martial. 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 Applicant’s personality disorder and parents’ consent to enlist at age 17 does not mitigate his misconduct. The Board found that the Applicant’s age, education level, and test scores qualified him for enlistment. While he may feel that his immaturity and youth were factors that contributed to his actions, the record clearly reflects his disregard for the requirements of military discipline and demonstrated that he was unfit for further service. The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.
The Applicant’s discharge characterization accurately reflects his service to his country. 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, disobey a lawful order; Article 112a, illegal drug use; 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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