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NAVY | DRB | 2004 Marine | MD04-01415
Original file (MD04-01415.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD04-01415

Applicant’s Request
The application for discharge review was received on 20040908. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a documentary record 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. 6210.2.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1. “My discharge was inequitable because of an isolated incident that I honorably served time for. In addition, I regret several discussions made by myself, except the discussion I made to join the Marine Corps and serve my country. After leaving the Marine Corps I worked hard and enrolled into DeVry University. While following the discipline and other tools the Marine Corps taught me, I became an honor student and Graduated Magna Cum Laude. In conclusion, during my enlistment I excelled at everything I did but with some minor infractions and a discipline problem disrupted my ability to serve, but since my Discharge I have been a model citizen.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Copy of BS Degree from DeVry University
Meritorious Mast
Employment reference letter

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                         940919 - 941012  COG

 Period of Service Under Review :
Date of Enlistment: 941013               Date of Discharge: 960209

 Length of Service (years, months, days):

         Active: 01 03 28 (Does not exclude lost time)
         Inactive: None

 Age at Entry: 19                          Years Contracted: 5

 Education Level: 12                        AFQT: 77

 Highest Rank: PFC                          MOS: 6300

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 2.9 (3)                       Conduct: 2.9 (3)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, REB

 Days of Unauthorized Absence: 13

 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 :

950224:  Counseled for deficiencies in performance and conduct. [UA from assigned duty.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

Unreadable:      Counseled for deficiencies in performance and conduct. [UA from remedial instruction on 950830.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
951006:  BMC, NH Millington, TN diagnosed the Applicant as alcohol dependent and recommended Level III treatment.
951030:  Summary Court-Martial.
                  Charge I. Violation of UCMJ, Article 86: UA from 950914 to 950926.
                  Charge II. Violation of UCMJ, Article 112a: Wrongfully use marijuana.
                  Finding: Guilty to Charge I, Not Guilty to Charge II.
 Sentence: Forfeiture of $427.00, confinement for 24 days, reduction to Pvt.
CA action: 951031. Approved and ordered executed.
951208:  NJP for violation of UCMJ, Article 86 (2 specs):
 Specification 1: UA from place of duty on 951201.
Specification 2: UA from place of duty on 951202.
Awarded forfeiture of $427.00 per month for 2 months (one month suspended for six months), restriction and extra duties for 45 days. Not appealed.
951212:  Vacated suspension from NJP of 951208.

 951221:  NJP for violation of UCMJ, Article 92: Wrongfully possessing alcohol in the barracks.
         Award: Forfeiture of $427.00 per month for 2 months, restriction and extra duty for 45 days. Not appealed.
960110:  Applicant offered VA treatment for substance abuse in conjunction with discharge.
960110:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to alcohol rehabilitation failure and due to minor disciplinary infractions as evidenced by your failure to cooperate in your own recovery, one summary court-martial, two NJPs and adverse page 11 entries.
960110:  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.
960110:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to alcohol rehabilitation failure and due to minor disciplinary infractions. Applicant refused to attend Level III treatment for alcohol dependence.

960130:  SJA review determined the case sufficient in law and fact.

960130:  GCMCA [Commander, Marine Corps Air Bases Eastern Area] directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19960209 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. A characterization of service of under other than honorable conditions is warranted when the member's conduct constitutes a significant departure from that expected of a Marine. T he Applicant’s service was marred by award of nonjudicial punishment (NJP) on two occasions and one summary court-martial for unauthorized absences and disobedience of orders. In addition, the Applicant refused to attend recommended alcohol dependence treatment and had adverse counseling entries for other misconduct. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for an honorable or under honorable (general) characterization of service. An upgrade is inappropriate. Relief denied.

The Applicant’s discharge characterization accurately reflects his service to his country. Normally, to permit relief, an inequity or impropriety must have existed during the period of enlistment in question. No such inequity or impropriety occurred during the Applicant’s enlistment. Additionally, 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 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. The Applicant’s evidence of post-service conduct was found not to mitigate his misconduct sufficient to warrant an upgrade to his discharge. Relief not warranted.

The Applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his 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 18 Aug 95until 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 86, unauthorized absence, and Article 92, disobey 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

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