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NAVY | DRB | 2004 Marine | MD04-01031
Original file (MD04-01031.rtf) Auto-classification: Denied


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

ex-PFC, USMC
Docket No. MD04-01031

Applicant’s Request
The application for discharge review was received on 20040607. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a documentary record discharge review. The Applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041112. 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. 6210.6.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

 Issues, as stated

Applicant’s issues, as stated on the application:

1. “I [Applicant] hereby present before the board of upgrading my discharge from other than honorable conditions to honorable conditions. For this reason, I feel that my discharge was inequitable because it was based on isolated incident in 30 months of service with no other adverse action. For this reason my charges brought upon me was a stolen camera that contained a video tape that was obtained from Kinser PMO in Okinawa Japan. Kinser PMO took it upon themselves to look at the video tape with no probable cause or anything. I was given Battalion Level NJP and never served anytime in the Brig or CCU before or after my NJP. I was sent to Naval Hospital Substance Abuse Rehabilitation Department they subjested that I didn’t need treatment and didn’t show patterns of drug abuse. They also stated that cases similar to this would be processed for administrative separation before non-judicial punishment, but they stated for me to be processed out after NJP. I also did my time on restriction and served my punishment. I wasn’t given the word for me getting process out till 2 weeks later after my restriction. They gave me an other than honorable discharge and I was out. I want to change my discharge to honorable conditions because the discharge that I have now is not qualifying me to get unemployment and can’t get a job. I’m bought to start a family now and I need a steady income. I trying hard to seek employment and it seems that because of my discharge I can’t get a job. I’m still trying hard to be employed to take care of my family that I’m about to start. The conditions I brought to your attention and I am pleading before the board to change my discharge from other than honorable conditions to honorable conditions. I thank you for this time listening to my argument and statements I have brought upon you.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                010105 - 010806  COG

 Period of Service Under Review :
Date of Enlistment: 010807               Date of Discharge: 030828

 Length of Service (years, months, days):

         Active: 02 00 22
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 36

 Highest Rank: LCpl                         MOS: 0161

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.8 (4)                       Conduct: 4.3 (4)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SSDR

 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. 6210.6.

 Chronological Listing of Significant Service Events :

030410:  NJP for violation of UCMJ, Article 92 (4 specs):
 Spec 1: Dereliction of duty, failed to report smoking in the barracks and wrongful use of chemical as inhalants on 18 Aug 02.
Spec 2: Wrongfully use chemicals as inhalants on or about Aug 02.
Spec 3: Failed to report underage drinking and smoking in barracks on 27 Sep 02.
Spec 4: Failed to report underage consumption of alcohol, hard liquor and smoking in barracks on 31 Dec 02.
         Award: Forfeiture of $575 per month for 2 month(s), restriction and extra duty for 45 days, reduction to E-2. Susp for 6 mos. No indication of appeal in the record.

030410:  Counseled for deficiencies in performance and conduct. [Your NJP of 030410.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

030507:  Substance Abuse Rehabilitation Department Report: SNM does not reveal any patterns of drug abuse or dependence, does not need treatment for drug abuse. Process Marine for administrative separation for illicit drug use.

030603:  Counseled for deficiencies in performance and conduct. [Illicit drug use.] Necessary corrective actions explained, sources of assistance provided.
030708:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and by reason of misconduct due to drug abuse as evidenced by video taped footage of you abusing chemicals not intended for human consumption. In addition, you were derelict in your duties by failing to report underage consumption, hard liquor and smoking in the barracks, as it was your duty to do.
030708:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

030708:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense. The factual basis for this recommendation was videotaped footage of [Applicant] abusing chemicals not intended for human consumption.

030729:  SJA review determined the case sufficient in law and fact.

030730:  GCMCA [CG, MCBCB] directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030828 under other than honorable conditions for misconduct due to the commission of a serious offense (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 Applicant states his discharge is inequitable because it was based on one isolated incident in “30 months.” Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline. The Applicant’s service record is marred by award of nonjudicial punishment (NJP) for four specifications of a violation of Article 92 of the UCMJ. In the Applicant’s case, the Board could discern no impropriety or inequity and therefore consider his discharge proper and equitable. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment, financial or educational opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. Relief denied.

The Applicant states, “Kinser PMO took it upon themselves to look at the video tape with no probable cause or anything.” The Board found no indication in the record that the Applicant was denied any legal rights or that his nonjudicial punishment proceedings or administrative discharge was improper or inequitable. Relief denied.

The following is provided for the edification of the Applicant. Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question. The Board discovered no impropriety after a review of Applicant’s case. 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 naval service. The NDRB is authorized, however, to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review. Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities. As of this time, the Applicant has not provided any documentation for the Board to consider. 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 documentation to support any claims of post-service accomplishments or any other evidence related to his discharge 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 an order or regulation.
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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