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NAVY | DRB | 2004 Marine | MD04-01179
Original file (MD04-01179.rtf) Auto-classification: Denied


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
 DISCHARGE REVIEW
DECISIONAL DOCUMENT
ex
-Pvt, USMC
Docket No. MD04-01179

Applicant’s Request
The application for discharge review was received on 20040709. 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 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. 6210.3.




PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:
1. “I was hurt during honorable active service. I was discharged after I was injured and it was pattern of misconduct. I was discharged with out my medical problems being fixed. I need my status changed to fix the problems. I would like a better job. ”

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)                920526 - 930317  COG

 Period of Service Under Review :
Date of Enlistment: 930318               Date of Discharge: 960923

 Length of Service (years, months, days):

         Active: 03 03 06
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 51

 Highest Rank: LCpl                         MOS: 0311

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.8 (10)                      Conduct: 3.8 (10)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

 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. 6210.3.

 Chronological Listing of Significant Service Events :

940930:  Counseled for deficiencies in performance and conduct. [Failure to operate a government vehicle with due caution resulting in damage to government vehicle.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

950517:  Counseled for deficiencies in performance and conduct. [Frequent involvement with military/civilian authorities and minor incidents prejudicial to good order and discipline.] Necessary corrective actions explained and sources of assistance provided.

950518   NJP for violation of UCMJ, Article 92: On or about 6 May 95, was derelict in duties by throwing paper into an alert aircraft engine. Article 134: Through intimidation or threat of force to LCpl B_, attempted to prevent communication of information relating to an investigation at VQ-4 compound.
 Awarded forfeiture of $223.00 per month for 1 month, restriction and extra duties for 14 days, RIR E-2.
950526:  NJP for violation of UCMJ, Article 91: Disrespectful in language and deportment toward Sgt R_ stating, “This is b___, f__ this command.”
 Awarded forfeiture of $199.00 per month for 1 months, restriction and extra duties for 14 days.
960627:  Alcohol related incident. No other information available. [Extracted from CAAC ltr dtd 960719.]
960708:  Applicant failed competency exam [alcohol and drug tests positive (THC)]. [Extracted from Head, Medical Holding Company ltr of 960709]

960710:  NJP for violation of UCMJ, Article 134: Wrongfully indulged in intoxicating liquor prior to performance of duties.
Awarded forfeiture of $437.00 per month for 2 months, restriction and extra duties for 60 days, 20 das and $437 for 1 mo susp for 6 mos.
960719:  Applicant found alcohol dependent and drug abuser.
960812:  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 your documented series of infractions.

960812:  Applicant advised of rights and having elected not to consult 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.

960812:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct. Commanding officer’s comments: [ON 17 May 1995, Pvt T_ received NJP for violation of Articles 92 and 134 for throwing paper into an alert aircraft engine and intimidation or threat of force to a Marine. On 25 May 1995, Pvt T_ received NJP for violation of Article 91, disrespectful in language and deportment toward the Sergeant of the Guard. On 7 September 1995 Pvt T_ was involved in Motor Vehicular accident which resulted in fatality of Marine passenger. Pvt T_ was medivaced from the accident to National Naval Medical Center, Bethesda, MD and was an outpatient in Medical Hold Company for rehabilitation and awaiting trial for Vehicular Manslaughter, Reckless Endangerment, Evading Arrest, and Driving While Intoxicated.]

960913:  SJA review determined the case sufficient in law and fact.

960917:  Commander, Marine Corps Forces Atlantic 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 19960923 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 Applicant contends that he was “hurt during honorable active service.” When the service of a member of the U.S. Marine Corps 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 nonjudicial punishment proceedings and counseling for violations of Articles 91, 92, 134 and 112a of the UCMJ. The Applicant’s first counseling was on 19940930. The Applicant’s last NJP was on 19960710. 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 U.S. Marine Corps and falls far short of that required for an upgrade of his characterization of service. Relief is not warranted.

The Applicant contends that he was discharged without his “medical problems fixed.” The Board found no indication from the service record that the Applicant was denied proper medical care for his injuries while on active duty and the Applicant provided no documentation to substantiate this claim. 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 Veterans Administration determines eligibility for post-service benefits not the Navy Discharge Review Board. There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.

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 18 Aug 95 until 30 Jan 97.

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 91, disrespect to noncommissioned officer.
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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