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NAVY | DRB | 2004 Marine | MD04-00298
Original file (MD04-00298.rtf) Auto-classification: Denied


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


ex-PFC, USMC
Docket No. MD04-00298

Applicant’s Request
The application for discharge review was received on 20031202. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requested 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 20040812. 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: GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: MARCORSEPMAN Par. 6210.6.




PART I - APPLICANT’S ISSUES AND DOCUMENTATION


 Issues, as stated
Applicant’s issues, as stated in an attachment to the application:

 “The following are issues that I believe should be considered when reviewing my application:

1) The length of service that I completed. I was only ten days short of reaching my end
of service obligation. This fact suggests that the administrative separation that I
received was intended to be punitive although I had just completed a Level III
Substance Abuse treatment program.

2) I was never given the opportunity or consideration for rehabilitation,

3) I was provided incompetent counsel at my administrative separation board.
4) I was discharged with total disregard to my mental and physical status.
5) I was denied medical treatment and had to request mast in order to receive proper
care.
6) Although I was considered a danger to myself and others, I was allowed no time to
rehabilitate myself to a sound mind. Therefore, my performance continually declined.
7) I had accrued 60 days of leave and, after multiple attempts; I was not allowed to apply
for terminal leave.
8) According to MCBH regulation, I was not supposed to be discharged until I had a
complete medical and dental screening. This regulation was not adhered to in my
situation.
9) Although I exhausted every course of appeal, many of my requests were simply
ignored and not responded to.
10) My pro and con marks are reflective of honorable service.
11) I am an engineering student in the honors program at Community College of San
Francisco and am achieving a 4.0 GPA this semester.
12) I have been actively seeking help regarding my mental health. Consequently, have
quit smoking and drinking.”



Documentation
 In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (MEMBER-4)
Applicant’s DD Form 214 (MEMBER-1)
 Command Chaplain letter to Commanding General, dtd18 Jul 02
 Acknowledgement of Rights (2 pages), dtd 20 Mar 02
 Copy of email from SgtMaj S_ to 1stLt L_, dtd 28 May 02
Disbarment from MCB Hawaii, dtd Jul 19, 2002
CG, MCB Hawaii, First Endorsement on Administrative Discharge, (2 pages),
dtd Jul 19, 2002
 Pro Con Marks, dtd 5/14/2002
 Check-out Sheet with Pro-Con marks,(4 pages) dtd 020719
Supervisor’s Command Information Sheet with Pro-Con marks, undated
 Applicant’s Written Statement to the Admin Discharge Board, (6 pages) dtd May 16,        2002
Pages from the applicant’s medical record (9 pages)
Department of Veterans Affairs Rating Decision, (4 pages) dtd April 24, 2003
Letter from C_ C_ , (2 pages) dtd October 1 ,01
Letter from E_ M_ , dtd September 26, 2001
Character Witness Statement, (2 pages) dtd 020321
Character Witness Statement, (2 pages) dtd 14 Mar 2002
Character Witness Statement, (2 pages) dtd 12 Mar 02
Character Witness Statement, (2 pages) dtd 20 Mar 02
Character Witness Statement, (2 pages) dtd 16 May 02
Letter from Applicant, request mast, (2 pages) dtd April 03, 2002
Substance Abuse Counseling Center, Medical Officer Diagnosis, dtd 27 May 02
Applicant’s Request to attend Level III Treatment, (2 pages) dtd 28 May 2002
Applicant’s Evaluation and Assignment to Level III Treatment, (3 pages) dtd 020530
Applicant’s Release from Level III Treatment, undated
Applicant’s Rebuttal regarding administrative remarks, dtd January 24, 2002
Applicant’s Request for Reenlistment, (5 pages) dtd 010816 (1 page removed since         document pertained to another individual)
Excerpts from Marine Corps Order pertaining to Retention, Promotion, Reenlistment (5     pages)
Excerpt from Marine Corps Order pertaining to The Marine Corps Substance Abuse   Program
Copy of City College of San Francisco Web page with grades for Fall 2003 semester (No    name or date provided)



PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
          Inactive: USMCR(J)                980124 - 980802  COG

 Period of Service Under Review :
Date of Enlistment: 980803               Date of Discharge: 020722

 Length of Service (years, months, days):
         Active: 03 11 20
          Inactive: 00 00 00
Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 77
Highest Rank: CPL

 Final Enlisted Performance Evaluation Averages (number of marks):
Proficiency: 4.3 (11)                      Conduct: 4.0 (11)

 Military Decorations: None
Unit/Campaign/Service Awards: NDSM

 Days of Unauthorized Absence: None
Character, Narrative Reason, and Authority of Discharge (at time of issuance):

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: MARCORSEPMAN Par. 6210.6.

 Chronological Listing of Significant Service Events :

010302:  NJP for violation of UCMJ, Article 92: [Wrongfully drinking underage],
violation of UCMJ, Article 128: [Unlawfully striking C_ three times in the facial area with a closed fist], violation of UCMJ, Article 134: [Drunk and disorderly].
Award: Forfeiture of $332.00 per month for 1 month, restriction for 14 days, and extra duties for 14 days. Not appealed.
010710:  Counseled for deficiencies in performance and conduct. [Failure to achieve the minimum requirement on the run portion of the Physical Fitness Test during the Corporal’s Course.] Advised that failure to take corrective action may result in administrative action or limitation of further service. Assistance is available through your entire chain of command.

010910:  Military Protective Order issued to stay away from proximity of wife.
010926:  NJP for violation of UCMJ, Article 92: [Failure to obey Military Protective Order by wrongfully making physical contact with his wife], violation of UCMJ, Article 128: [Verbal altercation with wife that turned physical], violation of UCMJ, Article 134: [Disorderly conduct].
         Award: Forfeiture of $691.00 per month for 2 month(s), restriction and extra duty for 45 days, reduction to E-3. Appeal submitted 010928. Appeal denied 011009.

 011016:  Applicant terminated as a treatment failure from the Domestic Violence Men’s Program due to involvement in an allegation of spouse abuse.
011025:  Family Advocacy Program Case Review Committee meeting.

 020116:  Counseled for deficiencies in performance and conduct. Repeated patterns of misconduct by receiving an NJP for underage drinking on 010302 and an NJP for violating MPO and getting into a physical altercation with your wife on 010926. Specific recommendations for corrective action are to enroll in Family Advocacy and attend domestic violence classes. Assistance is available through your chain of command, chaplain, and Personal Service Center. Failure to take corrective action and any further violations of the UCMJ may result in judicial or adverse administrative action, including but not limited to administrative separation.

020215:  Counseled for deficiency in conduct. Driving while under the influence of alcohol. This type of behavior reflects a lack of judgment and will not be further tolerated. Recommendation for corrective action is: don’t drink and drive; adhere to method of treatment prescribed by the Base SACO. Assistance is available through the Base SACO and your entire chain of command. Applicant was advised that failure to take corrective action may result in administrative separation or limitation of further service.

020215:  NJP for violation of UCMJ, Article 111: [Driving under the influence of alcohol with a BAC of .149%.]
         Award: Forfeiture of $619.00 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2. Appeal submitted 020215. Appeal denied 020228.
020320:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.
020320:  Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
020320:  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 are numerous violations of the UCMJ, to include failure to obey a lawful order issued by the Commanding Officer, to wit: Military Protection Order to stay away from the proximity of his wife, disorderly conduct towards two noncommissioned officers, and operating a vehicle while under the influence of alcohol, as supported by his three non-judicial punishments.
020322:  Family Advocacy Program Case Review Committee meeting conducted. The CRC determined that level III spouse abuse by female spouse to Applicant has occurred and that level II spouse abuse by the Applicant to the female spouse had occurred.
020325:  Director Substance Abuse Counseling Center, reevaluation of Applicant. Diagnosis is alcohol abuse. Applicant refuses to admit that his drinking is problematic. Applicant is non-amenable to any type of treatment program at this time and appears to only want to prolong his stay in the Marine Corps.
020411:  Medical Officer diagnosis that Applicant is alcohol dependent, recommends intensive outpatient treatment program.
020517:  An Administrative Discharge Board, based upon preponderance of the evidence and by unanimous vote, found that the Applicant has been involved in misconduct due to pattern of misconduct, that the misconduct warranted separation, and recommended discharge under honorable conditions.

020717:  SJA review determined the case sufficient in law and fact.
020719:  Commanding General, Marine Corps Base Hawaii directed the Applicant's discharge under honorable conditions by reason of misconduct due to pattern of misconduct.
020719   Commanding General, Marine Corps Base Hawaii issued Debarment from Marine Corps Base Hawaii order.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was separated from the Marine Corps on 20020722 with a general (under honorable conditions) discharge 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 & 10. The record does not support the Applicant’s assertion that his proficiency and conduct marks and length of service warrants an honorable discharge. When a Marines’ service has been honest and faithful, it is appropriate to characterize that service as honorable. A characterization of service of under other than honorable conditions is warranted when the member’s conduct constitutes a significant departure of that expected of a member of the United States Marine Corps. The record is void of any evidence that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. Relief is therefore denied.

Issues 2, 4, 5, 6, 8 & 9. 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. The record does not support his contentions that his “mental and physical status” were not taken into consideration before he was discharged. His service record is marred by award of nonjudicial punishment (NJP) on three separate occasions thus substantiating his misconduct . The Applicant’s disobedience of the orders and directives regulating good order and discipline in the naval service, demonstrated he was unsuitable for further service. It must be noted that most Marines serve honorably and therefore earn an honorable discharge. In fairness to those Marines, commanders and separation authorities are tasked to ensure that the undeserving receive no higher a service characterization than is due. An upgrade to honorable conditions would be inappropriate. Relief denied.

 Issue 3. The record demonstrates the Applicant was provided with competent legal council. Additionally, the Applicant did not provide any documentation that would refute the presumption of regularity. Relief denied.

Issue 7. Accrual and usage of leave are command issues and do not serve as a foundation upon which the Board can grant relief. The Board’s regulations limit its review to a determination of propriety and equity of the discharge. In the Applicant’s case the Board discovered no impropriety or inequity; thereby, considering the Applicant’s discharge proper and equitable. Relief based on this issue was not considered.

Issues 11 & 12. 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 to support post service consideration. 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 P1900.16E), effective 01 September 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 92, Failure to obey order or regulation ; Article 111, Drunken or reckless driving ; Article 128, Assault ; Article134, 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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