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NAVY | DRB | 2004 Marine | MD04-01104
Original file (MD04-01104.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD04-01104

Applicant’s Request
The application for discharge review was received on 20040625. 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. Subsequent to the submission of DD From 293, the Applicant obtained representation by Disabled American Veterans.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041222. 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. 6210.2.

 The NDRB did note administrative error(s) on the original DD Form 214. Block 24, Character of Service, should read: "UNDER OTHER THAN HONORABLE CONDITIONS" vice "OTHER THAN HONORABLE." The Commandant, Headquarters USMC, Quantico, VA, will be notified, recommending the DD Form 214 be corrected or reissued, as appropriate.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 No issues were submitted by the Applicant.

Issues submitted by Applicant’s counsel/representative (Disabled American Veterans):

 1.) “Dear Chairperson:

 After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of evidence assembled for review, we continue to note the contention of the appellant in his request for a discharge upgrade of his current Under Other Than Honorable (OTH) Conditions to that of Honorable.
The FSM served on active service from May 27, 1997 to June 20, 1998 at which time he was discharged due to Minor Disciplinary Infractions.

The FSM, based on submittal of the application, request a records review for an upgrade of the current General discharge, making no specific complaints of improprieties, nor requests of equitable relief.

As the representative, we ask that consideration be given to equitable relief, as this is a matter that involves a determination whether a discharge should be changed under the equity standards, to include any issue upon which the applicant submits to the Board’s discretionary authority, under SECNAVIST 5420.174C.

We ask for the Board’s careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision. These issues do not supersede any issues previously submitted by the applicant.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
None

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                         970509 - 970526  COG

 Period of Service Under Review :
Date of Enlistment: 970527               Date of Discharge: 980620

 Length of Service (years, months, days):

         Active: 01 00 24
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4

Education Level: 12                        AFQT: 54

 Highest Rank: PFC                          MOS: 0121

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.0 (3)                       Conduct: 3.7 (3)

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 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. 6210.2.

 Chronological Listing of Significant Service Events :

971106:  Counseled for deficiencies in performance and conduct. [Alcohol related incident on 31 Oct 97.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

971211:  Counseled for deficiencies in performance and conduct. [Lack of motivation and self-discipline as evidenced by exceeding 96 hour boundaries.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

971212:  NJP for violation of UCMJ, Article 92: Violation of a lawful order.
         Award: Forfeiture of $200 per month for 2 month(s), restriction and extra duty for 30 days. Forf of 200 for 1 mo. and 22 das. sup for 3 mos. Not appealed.

980417:  Counseled for deficiencies in performance and conduct. [Lack of military pride and attention to detail as evidenced by wearing of uniforms in an improper manner.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

980423:  Counseled for deficiencies in performance and conduct. [Disobeying a lawful order given by your SNCOs.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

980506:  Applicant self-referred to Medical for Alcohol Dependence Evaluation. Diagnosis:        
AXIS I: Alcohol Dependence, Occupational Problems, r/o adjustment disorder, depressed mood, r/o sleep disorder
                           AXIS II: Cluster B traits

980519:  Applicant declined treatment for Alcohol Dependence.    

980520:  NJP for violation of UCMJ, Article 86: UA from place of duty. Violation of UCMJ Article 91: Insubordinate conduct to an NCO. Violation of UCMJ Article 92: Failure to obey an order.
         Award: Forfeiture of $463 per month for 2 month(s), restriction and extra duty for 30 days, reduction to E-1. Not appealed.

980604:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions and alcohol rehabilitation failure as evidenced by repeated incidents of misconduct and failure to participate in alcohol rehabilitation program.
980604:          Applicant advised of rights and having elected not to consult 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.

980604:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions and alcohol rehabilitation failure.

980608:  SJA review determined the case sufficient in law and fact.

980617:  GCMCA [CG, 2MAW] directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions and alcohol rehabilitation failure. Misconduct due to minor disciplinary infractions is hereby designated as the primary basis for separation.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19980620 under other than honorable conditions for misconduct due to minor disciplinary infractions (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. When the service of a Marine has been honest and faithful, it is appropriate to characterize that service as honorable. An Under Other Than Honorable Conditions discharge is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record. The Applicant’s service was marred by four counseling sessions and two nonjudicial punishment proceedings for four violations of Articles 86, 91 and 92 of the UCMJ. The Applicant was diagnosed alcohol dependant on 19980506 by competent medical authority. On 19980519, the Applicant refused treatment for Alcohol Dependency. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the Marine Corps and falls far short of that required for an upgrade of his characterization of service. Relief is not warranted.

The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and/or the reason for discharge if such change is warranted. There is no evidence of impropriety or inequity in the Applicant’s discharge. The Applicant’s misconduct is clearly documented. Therefore, relief is 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. 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 31 Jan 97 until 31 Aug 2001.

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, disobey a lawful order or regulation.
C. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

D. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety .

 E. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity .

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 “ http://Boards.law.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:

                  Secretary of the Navy Council of Review Boards
                   Attn: Naval Discharge Review Board
                   720 Kennon Street SE Rm 309
                  Washington Navy Yard DC 20374-5023



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