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NAVY | DRB | 2004 Marine | MD04-00064
Original file (MD04-00064.rtf) Auto-classification: Denied

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

ex-PVT, USMC
Docket No. MD04-00064

Applicant’s Request
The application for discharge review was received on 20031006. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a documentary record review. The Applicant did not list a representative on his DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040628. 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:

 “To whom it may concern:

I am writing this letter to give explanations for the reasons I have listed to be taken into consideration for the upgrade to my discharge. My answers will be short and informative and in order as they appear on form dd 293, thank you for your consideration in this matter.”

1. “A 92.04 Awards and decorations, while in serv. I received rifle expert badge, overseas deployment with 2 stars, Kuwaiti liberation medal, southwest Asia medal, national defense medal, and combat action ribbon.”

2. “A 92.08 I feel I deserve an upgrade for my service in operation desert storm, I was a forward unit, we had many battles, and took casualties, I served with integrity, and bravery, even though I was 18 years old. And still today I would pick up a weapon for my country despite the trouble I had in the military.”

3. “A 92.24 my record of njp’s indicate only minor offenses, im sure you could tell this by looking at my record, I will be attaching a separate letter explaining my article 15’s in detail.”

4. “A 93.20 my use of alcohol impaired my ability to serve, I wasn’t a drinker until I was stationed at AAS in Del mar at camp Pendleton where the legal drinking age was 18 at the time I was there.”

5. “A 99.04 I tried to apply for hardship discharge but was told to forget about it, this one bothers me deeply, I went to my battalion commander after all the trouble I had been involved in, and asked him if I could have a hardship discharge, the reason was my wife was not in good health, and subsequently died 1 ½ years later, I was told by my b.co that I would not be able to get one and if I wanted out I would have to do something drastic to get in trouble, and he would be able to let me out, so I did.”

6. “A 94.04 I tried to serve and wanted to but couldn’t, my relationship with first sgt J_ made this impossible for me, I felt like every time he was in a bad mood it was I he came looking for, I know he singled me out, and I know he did not like me.”

7. “A 94.10 discharge based on many minor offenses”

8. “A 93.30 certain other reasons affected my ability to serve, my command was not supportive, I was recommended to go to alcohol counseling but never had to go, I was getting in trouble for the smallest petty things, first sgt J_ was on my tail every chance he got, even room inspections, I would clean for hours and still get a low grade even though It was cleared by my section chief as being acceptable.

J_ W_ (Applicant) “

My ability to serve in Garrison was compromised due to my spending the majority of my time deployed.

Please see attached paperwork for further explanation, to support all of the above.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
NAVMC 118(3) “Chronological Record” from Applicant’s SRB
NAVMC 118(6) “Weapons Firing Record” from Applicant’s SRB
NAVMC 118(8a) “Military and Civilian Occupational Specialties, Schools, Tests and
Correspondences Courses” from Applicant’s SRB
 NAVMC 118(9) “Combat History, Expeditions, Awards Record” from Applicant’s SRB
Ltr to Board from Applicant (half page), Undated
Ltr to Board from Applicant (3 pages), Undated
Character reference from mother (2 pages), Undated

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              None                       HON
         Inactive: USMCR (J)               900316 - 900530  COG

 Period of Service Under Review :
Date of Enlistment: 900531               Date of Discharge: 920914

 Length of Service (years, months, days):

         Active: 02 03 14 (Does not include lost time.)
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 54

 Highest Rank: PFC

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.6 (10)                      Conduct: 3.0 (11)

 Military Decorations: CAR

 Unit/Campaign/Service Awards: SSDR (w/1 star), KLM, NDSM, SASM (w/3 stars)

 Days of Unauthorized Absence: 34

 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 :

910607:  NJP for violation of UCMJ, Article 91: willfully disobeyed an order and then departed the area.
 Awd forf of $197.00 per month for 1 month, 14 days restriction and extra duties. Not appealed.
911010:  NJP for violation of UCMJ, Article 86: did absent himself without authority with the intent to avoid field day; Article 108: willfully damaged the toilet seat located in room #212 (Government Property); and
Article 92: violated BnO by consuming alcohol underage.
Awd forf of $197.00 per month for 1 month, 14 days restriction and extra duties. Forf of $197.00 per month for 1 month vacated (910607). Not appealed.
920116:  Counseled for deficiencies in performance and conduct. [Financial irresponsibility as evidenced by falling to balance check book and writing bad checks.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
920219:  Counseled for deficiencies in performance and conduct. [Frequent involvement with military authorities and financial irresponsibility.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
920428:  Counseled for deficiencies in performance and conduct. [For writing bad checks, for frequent involvement with military authorities and financial irresponsibility. Violations of UCMJ Art 91 and 86.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
920506:  Counseled for deficiencies in performance and conduct. [For writing bad checks, for frequent involvement with military authorities and financial irresponsibility. Violations of UCMJ Art 91 and 86 on various occasions.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
920508:  NJP for violation of UCMJ, Article 91: willfully disobey a lawful order by wearing eccentric sunglasses while in uniform; Article 86: fail to be at appointed place of duty; and Article 121: wrongfully appropriate LCpl W_’s 1990 Ford Mustang valued at $7500.00 by failing to return the vehicle at the agreed time of 0630 920504 and keeping it until 1600 920504.
 Awd red to Pvt/E-1, and 30 days restriction and extra duties. Not appealed.
920618:  UA/AWOL since 0710.

920622:  Fr UA (AWOL) at 0600, when Applicant surrendered.



 920626:  NJP for violation of UCMJ, Article 86: without proper authority absent himself from his appointed place of duty.
 Awd forf of $183.00 per month for 1 month, and 14 days restriction and extra duties. Not appealed.
920626:  UA/AWOL since 1300.

920726:  Fr UA (AWOL) at 0625, when Applicant surrendered.

 920805:  NJP for violation of UCMJ, Article 86: on or about 1300, 920626, absent himself without authority from “C” Co, 2d AABn, 2d MAR, and did remain so absent until on or about 0625, 920726.
Awd forf of $250.00 per month for 2 months, and 45 days restriction and extra duties. Not appealed.
920827:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by “the respondent’s five nonjudicial punishments which were conducted on 7 June 1991, 10 October 1991, 5 May 1992, 26 June 1992 and 5 August 1992.
920827:  Applicant advised of rights and having elected not to consult 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.

920827:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct. The factual basis for this recommendation was “the respondent’s five nonjudicial punishments which were conducted on 7 June 1991, 10 October 1991, 5 May 1992, 26 June 1992 and 5 August 1992.

920904:  SJA review determined the case sufficient in law and fact.

920904:  GCMCA [Commanding General, 2d Marine Division, FMF] 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 19920914 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 & 2: The receipt of commendatory awards and decorations or the fact the Applicant served during a time of conflict does not guarantee him an honorable discharge. When a Marine’s service has been honest and faithful, it is appropriate to characterize that service as honorable. When significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record, a less than honorable conditions discharge is warranted. T he Applicant’s service was marred by five nonjudicial punishments, four negative page 11 counseling entries, two periods of unauthorized absence and on two occasions the Applicant was not at his assigned place of duty . The Applicant’s conduct falls well short of that required for an honorable characterization of service. Relief denied.

Issues 3, 7 & 8: The Applicant states his discharge was based on “minor offenses.” Even though the civilian world treats some offenses with leniency, the military does not view such offenses as minor infractions because of the absolute need to maintain proper order and discipline within the force. The Applicant’s service record is marred by award of nonjudicial punishment (NJP) for willful disobedience on two occasions, unauthorized absence on four occasions, destruction of government property and wrongful appropriation, consequently substantiating the misconduct for which he was separated. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. In the Applicant’s case, the Board discovered no impropriety or inequity and considers his discharge proper and equitable. Relief denied.

Issues 4 & 5: The Applicant contends his problems in the Marine Corps can be attributed to "alcohol impairment" and the stress caused by his concern over his wife’s poor health. While he may feel his alcohol abuse was an underlying cause of his misconduct, the record clearly reflects his willful misconduct and it demonstrates he was unfit for further service. The evidence of record did not show the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions. The NDRB recognizes that serving in the Marine Corps is challenging. Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve our country. It must be noted most Marines serve honorably thereby earning honorable discharges. In fairness to those Marines, commanders and separation authorities are tasked to ensure that the undeserving receive no higher characterization than is due. The NDRB found that the Applicant's service was equitably characterized. Relief denied.

Issue 6: The Board appreciates the Applicant’s contention that he “tried to serve” and he “wanted to (serve),” but his efforts as documented in the discussion of Issues 1, 2, 3, 7 & 8 above fall well short of those Marines who have served honorably. Relief would be inappropriate
  
 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. However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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. Verifiable proof of any 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. E vidence of continuing educational pursuits, a positive employment record, documentation of community service, and certification of non-involvement with civil authorities, are examples of verifiable documents that should be provided to receive consideration for relief, based on post-service conduct. At this time, the Applicant has not provided sufficient verifiable documentation of good character and conduct to mitigate his misconduct while on active duty. Relief denied.
 
The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge. The Applicant can provide additional documentation to support any claims of post-service accomplishments at that time. 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 (x4), unauthorized absence; Article 91 (x2), Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer; Article 92, Failure to obey order or regulation; Article 108, Military property of United States--Loss, damage, destruction, or wrongful disposition; or Article 121, Larceny and wrongful appropriation.
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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