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NAVY | DRB | 2004 Marine | MD04-01268
Original file (MD04-01268.rtf) Auto-classification: Denied


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


ex-LCpl, USMC
Docket No. MD04-01268

Applicant’s Request
The application for discharge review was received on 20040802. 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 20041229. 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 SERVED IN THE MARINE CORPS FROM 1996-2000, DURING THIS PERIOD I WAS MERITOURISLY TWICE AND RECEIVED A GOOD CONDUCT MEDAL. I WAS HONARBLY DISCHARGED AND RE-ENLISTED DUE TO MY LOVE FOR THE MARINE CORPS. I DID, DO AND ALWAYS WILL LOVE THE MARINE CORPS. I WAS GOING THROUGH A DIVORCE IN MY SECOND ENLISTMENT AND HAD VERY CLOUDY JUDGMENT IN WICH RESULTED IN MY NEGATIVE ATTITUDE WHICH CAUSED ME TO ABUSE ALCOHOL. I REGRET MY ACTIONS AND WOULD RETURN THIS VERY MINUTE TO SERVE WITH FELLOW MARINES. I RESPECTFULLY REQUEST A REVIEW OF MY DISCHARGE AND HOPE YOU WOULD CONSIDER UPGRADING IT TO HONORABLE. ”

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: USMC              960131 - 991109  HON
          Inactive: USMCR(J)                950823 - 960131  COG
Period of Service Under Review :
Date of Enlistment: 991110               Date of Discharge: 020526

 Length of Service (years, months, days):
         Active: 02 06 17
         Inactive: None
Age at Entry: 24                          Years Contracted: 4

 Education Level: 12                        AFQT: 47
Highest Rank: Sgt                          MOS: 4671

 Final Enlisted Performance Evaluation Averages (number of marks):
Fitness reports from 19980801 to 20010427 were available to the board.
Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, GCM, MM, LoA
Days of Unauthorized Absence: 28

 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 :

991110:  Reenlisted for 4 years.

 010125:  Counseled for deficiencies in performance and conduct. [Failure to meet Marine Corps height/weight standards.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

010309:  NJP for violation of UCMJ, Article 91: Disrespect towards GySgt C_. Article 92: Failure to follow orders from a SNCO.
 Award: RIR to E-4, susp. 6 mos. Not appealed.
010426:  Award susp. 010309 vacated and ordered executed.
010427:  Counseled for deficiencies in performance and conduct. [Your conduct since joining the MEU.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
010622:  NJP for violation of UCMJ, Article 86: UA 010516 to 010613 (28 das). Article 134: Incapacitated for performance of duties through prior wrongful indulgence. Article 92: Fail to obey an order from GySgt P_.
 Awarded forfeiture of $500.00 per month for 2 months, RIR E-3, $250 forf. susp. 6 mos. Not appealed.
011024:  SACC statement: SNM failed to follow prescribed continuing care and has returned to alcohol abuse.

 011129:  Counseled for deficiencies in performance and conduct. [Failure to maintain Marine Corps height/weight standards.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

011220:  NJP for violation of UCMJ, Article 86:
                  Spec 1: From remedial PT 011015.
                   Spec 2: From remedial PT 011016.
                   Spec 3: From remedial PT 011017.
                  Spec 4: From remedial PT 011018.
                   Spec 5:  From remedial PT 011019.
                   Spec 6: From remedial PT 011217.
          Award: Forf $323.00 for 1 mo., restriction and ex du for 14 das. Forf. susp. 6 mos.
020102:  Counseled for deficiencies in performance and conduct. [Pattern of misconduct.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
020103:  Commanding Officer’s administrative separation interview. […I encouraged that he should rethink his decision to forego additional treatment. I also told him that I would withdraw this separation package if he chose to reinitiate and follow the treatment plan. I explained that I wanted to see him succeed in this. Upon his return from the leave period, he stated that he did not want to continue treatment, and the he wanted to be discharged so that he could be near his son.]
020211:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and alcohol rehabilitation failure as evidenced by your return to drinking after completing an IOP Alcohol Treatment Program and rejection of all additional treatment options which have been made available to you and your discreditable involvement with authorities during this enlistment as evident by your (2) nonjudicial punishments, statements of your supervisors, and other adverse entries on page 11 of your service record book.
020313:  Counseled for deficiencies in performance and conduct. [Alcohol related incident, specifically DUI.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
020416:  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.
020416:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and by reason of misconduct due to alcohol rehabilitation failure.

Undated:         SJA review determined the case sufficient in law and fact.
020516:  GCMCA [CG, 2dMAW] directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and by reason of alcohol rehabilitation failure. Misconduct due to a pattern of misconduct is designated as the primary basis.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20020526 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. When the service of a member of the 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 three nonjudicial punishment proceedings for violations of Articles 86, 91, 92 and 134 of the UCMJ in addition to five counselings for performance and conduct. The Applicant also had one suspended sentence vacated, indicating further misconduct. 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 his problems in the Marine Corps can be attributed to his divorce, “cloudy judgment” and alcohol abuse. While he may feel that his abuse of alcohol was the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service. The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.

The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces and the NDRB is not authorized to change a reenlistment code. An unfavorable “RE” code is, in itself, not a bar to reenlistment. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.

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. 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 a lawful order.
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
                   Washington Navy Yard DC 20374-5023



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