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NAVY | DRB | 2004 Marine | MD04-00331
Original file (MD04-00331.rtf) Auto-classification: Denied


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


ex-Pvt, USMC
Docket No. MD04-00331

Applicant’s Request
The application for discharge review was received on 20031210. The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions. 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: UNDER OTHER THAN HONORABLE CONDITIONS/ Misconduct-Pattern of misconduct (with administrative discharge board) , authority: MARCORSEPMAN Par. 6210.3.


PART I - APPLICANT’S ISSUES AND DOCUMENTATION


Issues, as stated
Applicant’s issues, as stated on the application:

 Issue 1: “When I was 19 years old I was an alcoholic. Today I am a member of Alcoholic Anonymous and trying to regain the life of an honorable human being. This discharge prevents any meaniful employment in my area of interest, which is corrections profession. It is also a deep sense of failure that I’ve lived with, since I was asked to leave. ”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 149
Character reference, dtd October 20, 2003

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
          Inactive: USMCR (J)               881003 - 890807  COG
Period of Service Under Review :
Date of Enlistment: 890808               Date of Discharge: 920212

 Length of Service (years, months, days):
         Active: 02 04 10 (Account for lost time.)
          Inactive: None

 Age at Entry: 18                          Years Contracted: 4
Education Level: 12                        AFQT: 75

 Highest Rank: PFC
Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.5 (3)                       Conduct: 3.3 (3)
Military Decorations: None

 Unit/Campaign/Service Awards: NDSM
Days of Unauthorized Absence: 911216 - 920110

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

UNDER OTHER THAN HONORABLE CONDITIONS/ Misconduct-Pattern of misconduct (with administrative discharge board) , authority: MARCORSEPMAN Par. 6210.3.

 Chronological Listing of Significant Service Events :

900413:  NJP for violation of UCMJ, Article 86 (2 specs):
 Specification 1: … did … fail to go at time prescribed to work formation at 0700, 900331.
 Specification 2: … did … fail to go at time prescribed to work formation at 0500, 900406.
 Awarded forfeiture of $189.00 per month for 1 month, and 14 days restriction and extra. Not appealed.
900824:  NJP for violation of UCMJ, Article 92 (2 specs):
 Specification 1: … did drive a motor vehicle in direct violation of a base order which revoked his base driving privileges …
 Specification 2: … did in direct violation of 1stLt S_’s order drive a motor vehicle while (his) base and state driving privileges were revoked.
 Awarded forfeiture of $189.00 per month for 1 month, and 7 days confinement in correctional custody. Not appealed.
901005:  Counseled for deficiencies in performance and conduct. [Frequent involvement with military authorities.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
910129:  Special Court-Martial.
          Charge I: violation of the UCMJ, Article 86:
          Specification: Unauthorized absence.
          Charge II: violation of the UCMJ, Article 123:
         Specification: Did utter and drew (11) worthless checks …
         Charge III: violation of the UCMJ, Article 134 (2 Specifications):
         Specification 1: … indebted … in the sum of $379.25 and failing to pay amount due.
         Specification 2: … indebted … in the sum of $1104.64 and failing to pay amount due.
Findings: to Charge I and the specification thereunder, guilty. To Charge II and specification thereunder, not guilty. To Charge III and specification 1 thereunder, guilty. To specification 2 under Charge III, guilty.
         Sentence: Red to E-1, 60 days confinement and 90 days at hard labor w/o confinement.
          CA 910129: Sentence approved and ordered executed.
910318:  Completed thirty-six hour course of instruction in Alcohol and Drug Abuse Prevention Education.
910830:  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 Applicant’s special court-martial of 29 January 1991, his nonjudicial punishments of 13 April 1990 and 24 August 1990 and his adverse page 11 entry of 5 October 1990.

910830:  Applicant advised of rights and having not consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
910830:  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 special court-martial of 29 January 1991, his nonjudicial punishments of 13 April 1990 and 24 August 1990 and his adverse page 11 entry of 5 October 1990.

911010:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to a pattern of misconduct, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.
920117:  SJA review determined the case sufficient in law and fact.
920121:  GCMCA [Commanding General, 2d MarDiv] 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 19920212 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).
Issue 1. The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities as requested in the issue. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. In the Applicant’s case, the Board could discovered no impropriety or inequity. A characterization of service of under other than honorable conditions is warranted when the service member’s conduct constitutes a significant departure from that expected of a member of the United States Marine Corps. The record is devoid of any evidence that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. The Applicant’s service record is marred by award of nonjudicial punishment (NJP) on two separate occasions and a Special Court-Martial conviction thereby substantiating his misconduct. It must be noted most Marines serve honorably and earn honorable discharges. 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 general (under honorable conditions) would be inappropriate. Relief denied.
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. Evidence of continuing educational pursuits, a positive employment record, a drug-free lifestyle, and certification of community service and non-involvement with civil authorities are examples of verifiable proof that can be submitted. The Board appreciates the Applicant’s efforts to improve his life and his involvement in his local Alcoholics Anonyms, which is encouraging. The Board earnestly hopes he will continue his participation. At this time, the Applicant has not provided sufficient verifiable documentation for the Board’s consideration.
 
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, Unauthorized absence; Article 92, Failure to obey order or regulation ; Article 134, Indebtedness and failing to pay amount due.

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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