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NAVY | DRB | 2004 Marine | MD04-00349
Original file (MD04-00349.rtf) Auto-classification: Denied


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

ex-LCpl, USMC
Docket No. MD04-00349

Applicant’s Request
The application for discharge review was received on 20031216. The Applicant requested 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, 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: “Dear Sir or Ma’am,

My name is J_ H_ (Applicant), and I am a former U.S. Marine. I went into the Marine Corps straight out of high school in July of 1999. I was stationed aboard 1st Radio Battalion, U.S. Marine Forces Pacific as a Diesel Mechanic. I got into some trouble for underage drinking because I was only 17 years old when I joined. After getting in trouble on three separate occasions I decided that I should wait until I turned 21 to drink alcohol. Unfortunately, a week after I turned 21, I got into trouble for drinking again. This time, I was drinking with a friend who was 20 years old, and was attacked by him when I was leaving his barracks room. When I was finally able to flee the situation, I began yelling for help and running away from his room. Because I was intoxicated and hysterical, I was taken to the Military Police Station where I was laughed at and made fun of by the MP's for getting beaten up by a junior Marine. I was taken to the hospital because my face and head were so swollen and bruised, that they thought that I might have received some broken bones and/or brain damage. Upon being picked up from the hospital, my command brought me straight to the Naval Brig without even telling me what I was being charged for. Finally after sitting in the Brig for two weeks I was released and received Nonjudicial Punishment for drunk and disorderly conduct and contributing to a minor. Within a couple of weeks I was given an Administrative Discharge for Pattern of Misconduct because of my four alcohol related incidents. When I was in the Marine Corps, the Marine Corps was my whole life, and I was in the process of doing a reenlistment package when I got in trouble. I was only one month away from being eligible to pin on the rank of Sergeant, and had been a Corporal for 11 months. I wanted to make the Marine Corps a 30-year career, and only had 10 months remaining on my first four-year contract. When they told me that they were going to separate me, I was devastated, and begged them to let me at least finish my first enlistment. They would not let me, and also gave me an Other Than Honorable Discharge in September of 2002. I do not believe I deserved this because I was the Noncommissioned Officer of the Month twice, I was the Marine of the Month once, I graduated at the top of the class in my Military Occupational Specialty school, I was awarded the most motivated Marine award while serving with the MP’s aboard Camp Johnson, NC, and I was always regarded as a walking “Recruiting Poster.” I always did my best in every situation, but was never satisfied with my best. After being discharged I was able to be with my wife again, who had been gone for six months. She is a former Marine and now an Officer in the Navy. We got stationed here in Washington at Naval Station Everett in January of 2003. I have been doing extensive research on my separation, and the rules and regulations governing the separation of Marines and Sailors. I have found that if a command has someone who has gotten into trouble for alcohol related incidents, they are required to send them to an alcohol treatment facility and retain them for further service. A command is not allowed to discharge anyone for alcohol related incidents unless the Marine or Sailor has been to alcohol treatment for prior alcohol related incidents, and has another incident after completion of alcohol treatment. I was never sent to any treatment, nor was I given the opportunity to go. My lawyer in Hawaii advised me to waive my separation board because of past experiences that the lawyers had with my command. The lawyer said that I would have been able to fight my separation and stay in the Marine Corps, but it would only be a matter of time before the command would get their way and separate me. I have also researched other Marines and Sailors who were separated for alcohol related incidents, and found no one to have ever been in the situation that I am now in. Furthermore, most persons separated for alcohol rehabilitation failures received Honorable Discharges. The others received General Discharges Under Honorable Conditions, which I did not even receive. Within a month after my separation my Battalion Commanding Officer and my Battalion Sergeant Major were both relieved of their duties at 1st Radio Battalion. In February of 2003, just before my Battalion Deployed to Kuwait, I received a great number of phone calls from the Marines that I left behind telling me how much they wished that I was going to combat with them and how much they needed me. I respectfully request that you review my information so that I may hopefully get my discharge upgraded. I have a great amount of support from the Marines that I worked with at 1st Radio Battalion and the Navy Officers whom I have befriended since my discharge. Every Marine and Sailor that I know believes that I should still be a Marine and that I was terribly wronged by my command. I have received some letters of recommendation for my discharge upgrade, which I have enclosed, from some of the people who I knew in the Marine Corps. I have also been talking to local Navy and Marine Corps recruiters about getting into the Reserves while I attend college, and they have been very supportive and helpful. Hopefully, if my discharge and reentry code are upgraded, I will be given a second chance at pursuing the career that I have trained for since August of 1998, when I first signed my enlistment contract with the United States Marine Corps. I truly love the Marine Corps and would do anything to be a Marine again. Thank you for taking the time to review my separation.

Very Respectfully,
(Signed)
J_ H_ ( Applicant ) ”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214
 Certificate of Appreciation from the Department of the Navy
Promotion Warrant for Private First Class
Diploma from Logistics Operation School
Certificate of Achievement from the Marine Corps Association
Promotion Warrant for Lance Corporal
Fundamentals of Marine Corps Leadership MCI Certificate
Meritorious Mast for Marine of the Month
Endorsement of Meritorious Mast by CO
Marine Corps Martial Arts Program Certificate for Tan Belt Training
Promotion Warrant for Corporal
Diploma form the MCBH Corporals Course
Incidental Motor Vehicle Operator MCI Certificate
Personal Financial Management MCI Certificate
Basis Shop Fundamentals for the Mechanic MCI Certificate
Ground Maintenance Management Procedures for Supervisors
Meritorious Mast for NCO of the Month
Meritorious Mast for NCO of the Month
Leadership (Sergeants Nonresidents Course) MCI Certificate
Basic Grammar (Sergeants Nonresidents Course) MCI Certificate
Spouse’s Certificate of Appreciation
 Letter of Recommendation by R_ B_
Letter of Recommendation by G_ B_
Letter of Recommendation by J_ S_
Letter of Recommendation by R_ H_
Letter of Recommendation by J_ K_
 Cooling and Lubrication Systems Maintenance MCI Certificate
Automotive Fuel and Exhaust Systems MCI Certificate
Fundamentals of Diesel Engines MCI Certificate
Automotive Brake Systems MCI Certificate
 Terrorism Awareness for Marines MCI Certificate



PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              None                       HON
         Inactive: USMCR (J)               980817 - 990719  COG

 Period of Service Under Review :
Date of Enlistment: 990720               Date of Discharge: 020919

 Length of Service (years, months, days):

         Active: 03 02 00
         Inactive: None

 Age at Entry: 17                          Years Contracted: 4

 Education Level: 12                        AFQT: 71

 Highest Rank: Cpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: NFR*                          Conduct: NFR

 Military Decorations: MeritM (x3)

 Unit/Campaign/Service Awards: NDSM

 Days of Unauthorized Absence: None

         *Not Found in Record.

 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 :

000121:  NJP for violation of UCMJ, Article 92: … did … consume alcoholic beverages, while under the legal drinking age.
 Awarded forfeiture of $502.00 per month for 1 month. Forf susp for 3 mos. Not appealed.
000126:  Counseled for deficiencies in performance and conduct. [Violation of Marine Corps Regulations by consuming alcohol under the legal drinking age.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
000623:  NJP for violation of UCMJ, Article 107: … admitted … that he had lied about his earlier statement.
 Awarded forfeiture of $281.00 per month for 1 month, and 14 days restriction and extra duties. Not appealed.
000629:  Counseled for deficiencies in performance and conduct. [Disregard for Marine Corps Regulations by consuming alcohol under the legal drinking age.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
000711:  SACC screening report, Diagnosis deferred. Recommend SNM attend Alcohol IMPACT.

000809:  Counseled for deficiencies in performance and conduct. [Failure to maintain government property in a serviceable manner.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
001005:  NJP for violation of UCMJ, Article 92: … failed to obey a base regulation.
 Awarded forfeiture of $263.00 per month for 1 month, and 14 days restriction and extra duties. Forf susp for 2 mos. Not appealed.
020906:  SACC screening report, Diagnostic Impression: Alcohol Abuse by history. Recommend: Abstain from alcohol while on prescribed medications as directed by physician. Adherence to prescribed medication regime.

Undated:         Pretrial Confinement Memorandum.

020906:  NJP for violation of UCMJ, Article 128: ... did … assault … by striking him with his fist.
 Violation of UCMJ, Article 92: … violated a lawful regulation … by wrongfully having alcohol available to … who is of minor age.
Violation of UCMJ, Article 108: … willfully damaged by striking his head on military property.
Violation of UCMJ, Article 134: Drunk and disorderly.
Awd red LCpl/E-3, forf of $734.00 per month for 2 months, 45 days restriction and extra duties. Not appealed.
020911:  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 “numerous violations of the UCMJ.”
020911:  Applicant advised of 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.

020911:  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 “numerous violations of the UCMJ.”

020919:  SJA review determined the case sufficient in law and fact.

020919:  GCMCA [Commanding General, Marine Corps Base Hawaii] directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

020919:  Applicant’s Debarment from Marine Corps Base Hawaii.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20020919 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: In the Applicant’s case, the Board discovered no impropriety or inequity; thereby, considering his discharge proper and equitable . A service characterization 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 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 four separate occasions, to include the appropriate retention and discharge warnings . Additionally, the record does not support the Applicants contention “(he) was never sent to any treatment, nor was (he) given the opportunity to go.” To the contrary, the Applicant was sent to and successfully completed the Alcohol IMPACT Course on 21 July 2000. The Applicant’s summary of service clearly reflects the Applicant’s disobedience of the orders and directives regulating good order and discipline in the naval service, while demonstrating his unsuitability for further service. An upgrade to general (under honorable conditions) would be inappropriate. Relief denied.

 Concerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces. Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment. A request for waiver is normally done only during the processing of a formal application for enlistment through a recruiter.
 
 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 to warrant consideration in this regard. 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 92, Failure to obey order or regulation; Article 107, False official statements; Article 108, Military property of United States--Loss, damage, destruction, or wrongful disposition; Article 128, Assault; Article 134, Drunk and disorderly.
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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