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NAVY | DRB | 2004 Marine | MD04-00163
Original file (MD04-00163.rtf) Auto-classification: Denied


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

ex-PVT, USMC
Docket No. MD04-00163

Applicant’s Request
The application for discharge review was received on 20031029. 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, authority: MARCORSEPMAN Par. 6210.3.


PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

 “Dear Board of Appeals,

 The following paragraphs are to request to have my discharge upgraded from Other Than Honorable.
My discharge from the Marine Corps in December of 2001 was due to four alcohol related incidences. Although I am still angry with myself for the outcome of my Marine Corps career, and that is something I have to live with, I have learned a great deal from it. Even though the discharge I earned was because of alcohol, I am very proud of the fact that since my discharge I have not had a single alcohol related incident. I credit this to the lesson that I learned from the Marine Corps, and the discharge I was given. Receiving the OTH discharge made me take responsibility for my actions, good or bad, and realize that there are consequences that go along with everything that I do. I do take full responsibility for my actions while enlisted and regret those choices that I made which resulted in this outcome. If I could take those actions back, I would in a second; however the only course of action I can take now is to place it in your hands with this letter.
All of my offenses had been served while still enlisted in the Marine Corps. I was reprimanded by NJP, which resulted in the necessary loss of rank and salary. I attended alcohol abuse classes that were recommended through my command, and received certificates of completion for these. Through this hard time I tried to persevere becoming section leader of the machine gunner section, a staff NCO billet, even though I had made mistakes I did not want to let them affect my morale or motivation. I am still trying to persevere, though now a former Marine, but finding it very difficult with the OTH discharge I received.
Currently I am working full time and am enrolled in college pursuing a degree. Although I can, and will try to better myself in every aspect of my life, my discharge is the one aspect that I would like to better most. I feel that in the Marine Corps when I made these mistakes I was punished accordingly, but should not have to feel the repercussions of these mistakes for the rest of my, and my new family’s, life. I made mistakes and was punished for those mistakes; please do not have me be continually punished with continuing to hold this OTH discharge.
I can honestly say that those years of acting stupid are well behind me. I admit fully that I made mistakes, which led to my discharge in December 2001, and I take this time to apologize to the fullest extent.
Enclosed is my personnel file along with a letter of recommendation from former Marine Corporal D_ L. E_.
I thank you for your time and review of this matter and hope and pray that there is a positive outcome.
Sincerely, M_ N_ C_ ( Applicant ) (social security number deleted)
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214
Character reference, dtd July 13 2003
SF 180, Request Pertaining to Military Records
National Personnel Records Center ltr, dtd March 17, 2003
Official Military Record (16 pages)
Amarillo Police Department record check
Employment reference, dtd November 19, 2003
Pay Record (2 pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              None                       HON
         Inactive: USMCR (J)               980912 - 981101  COG

 Period of Service Under Review :
Date of Enlistment: 981102               Date of Discharge: 011218

 Length of Service (years, months, days):

         Active: 03 01 17
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

 Education Level: 12                        AFQT: 64

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.3 (7)                       Conduct: 3.7 (7)

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR, CertCom

 Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MARCORSEPMAN Par. 6210.3.

 Chronological Listing of Significant Service Events :

991120:  NJP for violation of UCMJ, Article 111: Driving under the influence of alcohol.
 Awd forf of $260.00 per month for 1 month and 14 days restriction and extra duties. Not appealed.

000328:  NJP for violation of UCMJ, Article 92: failure to obey a legal order by consuming alcohol under the legal age.
 Awd forf of $563.00 per month for 2 months and 60 days restriction. Not appealed.
010202:  Counseled for deficiencies in performance and conduct. [Drinking in barracks and destroying government property while intoxicated.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
010214:  NJP for violation of UCMJ, Article 92: failure to obey an order by having liquor in the barracks.
 Violation of UCMJ, Article 108: destruction of government property.
Awd red to E-2, forf of $584.00 per month for 2 months and 45 days restriction and extra duties. Not appealed.
010423:  Counseled for deficiencies in performance and conduct. [Pattern of misconduct.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
010423:  NJP for violation of UCMJ, Article 91: Insubordinate conduct.
 Violation of UCMJ, Article 134: drunk and disorderly.
Awd red to E-1, forf of $521.00 per month for 2 months and 45 days restriction and extra duties. Not appealed.
011010:  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 continual misbehavior (which) has been a constant disruption to the good order and discipline of (the Applicant’s) unit.
011010:  Applicant advised of rights and having elected not to consult 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.

011010:  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 Applicant’s) history of misconduct during his time in the Marine Corps.

011203:  SJA review determined the case sufficient in law and fact.

011210:  GCMCA [Commanding General, 1 st Marine Division (Rein)] 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 20011218 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).

 Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question. No such error or injustice occurred during the Applicant’s enlistment. While he may feel that alcohol was a contributing factor, it does not mitigate the Applicant’s disobedience of the orders and directives that regulate good order and discipline in the Marine Corps; thereby, demonstrating his unsuitability for further service. His record is marred by award of nonjudicial punishment (NJP) on four separate occasions for insubordination, disobedience to orders, destruction of government property, drunk driving and being drunk and disorderly . It must be noted most Marines serve honorably and well earning honorable discharges. In fairness to those Marines, commanders and separation authorities are tasked to ensure the undeserving receive no higher characterization than is due. An upgrade to honorable conditions would be inappropriate. Relief denied.

T here 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. Evidence 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 P1900.16F), effective 01 Sep 2001 until Present.

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 91, Insubordinate conduct; Article 92, Failure to obey order or regulation; Article 108, Destruction of government property, Article 111, Drunken or reckless driving; and Article 134, Drunk and disorderly conduct.
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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