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USMC | DRB | 2005_Marine | MD0500519
Original file (MD0500519.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD05-00519

Applicant’s Request
The application for discharge review was received on 20050126. 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 20050516. 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. “It has Been 8 years since discharged, have not Been in Trouble, made a good Life for myself, now have a family (10 month old son). Change in discharge will help me make a better future for my child and myself.”

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

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                940311 - 940314  COG

 Period of Service Under Review :
Date of Enlistment: 940315               Date of Discharge: 960126

 Length of Service (years, months, days):

         Active: 01 10 12
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4

 Education Level: 12                        AFQT: 41

 Highest Rank: PFC                          MOS: 3051

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.1 (7)                       Conduct: 3.9 (7)

 Military Decorations: None

 Unit/Campaign/Service Awards: REB, 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. 6210.3.

 Chronological Listing of Significant Service Events :

950131:  NJP for violation of UCMJ, Article 108:
 Specification: Willfully damage a window by breaking the glass, the value of $112.06 on 950102.
Awarded forfeiture of $100.00 per month for 1 month, restriction and extra duties for 7 days. Forfeiture suspended for 3 months. Not appealed.
950201:  Intake interview with a diagnosis of alcohol dependence. [Extracted from Director, Consolidate Substance Abuse Counseling Center letter dated 950407.]
950203:  CSACC request for medical officer evaluation to confirm diagnostic impression of alcohol dependence. Medical officer agrees with impression.
950324:  NJP for violation of UCMJ, Article 86:
 Specification: Absent from appointed place of duty on 1800, 950316, to wit: field day formation.
Violation of UCMJ, Article 92:
Specification: Disobey a lawful order given by Platoon Sergeant at 2100, 950316, to be present at field day formation
Awarded forfeiture of $223.00 per month for 1 month, restriction and extra duties for 14 days. Forfeiture suspended for 6 months. Not appealed.
950407:  Director, Consolidate Substance Abuse Counseling Center: Based on findings and MCO 5300.12 Applicant will be ordered to a Navy Rehabilitation Facility for treatment/rehabilitation. Admission date: 950412.
950412:  Applicant diagnosed alcohol and nicotine dependent.

 950512:  Applicant completed Level III and assigned to a structured aftercare program.
950727:  Vacate suspended forfeiture awarded at CO’s NJP dated 950324.

950727:  NJP for violation of UCMJ, Article 92:
 Specification: Willfully disobey orders by operating a privately owned vehicle without a license on 1557, 950708, to wit: CG MCB JA order MCBJOP11240.1b.
Awarded forfeiture of $427.00 per month for 1 month, restriction and extra duties for 30 days, reduction for 30 days. Not appealed.
950824:  Counseled for deficiencies in performance and conduct. [Performance and conduct over the last six months has been unacceptable the trend of multiple disciplinary infractions of the UCMJ will not be tolerated at all in the future.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.


950921:  NJP for violation of UCMJ, Article 91:
 Specification: Insubordinate in conduct towards Cpl O_ on 2320, 950906.
Violation of UCMJ, Article 92:
Specification: Fail to obey MCO 5300.12 on 2320, 950906, to wit: after care program.
Violation of UCMJ, Article 128:
Specification: Strike Cpl O_ with a closed fist on 2320, 950906.
Violation of UCMJ, Article 134:
Specification: Drunk and disorderly on 2320, 950906.
Awarded forfeiture of $427.00 per month for 1 month, restriction and extra duties for 30 days. Not appealed.
950926:  Applicant terminated from aftercare program due failure to attend/participate in the program.
951113:  Applicant notified of intended recommendation for discharge by reason of misconduct due to a pattern of misconduct and by reason of alcohol rehabilitation failure. The least favorable characterization of service which Applicant may receive is under other than honorable conditions.
951113:  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.

951113:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and alcohol rehabilitation failure. The factual basis for this recommendation was Applicant’s pattern of misconduct and non-compliance with the Level III aftercare program. During Applicant’s current enlistment, Applicant has received four nonjudicial punishments and one counseling entry on page 11 of service record. Despite efforts to encourage Applicant toward honorable, productive service, Applicant has responded with further acts of misconduct. By Applicant’s actions, he has demonstrated that he has absolutely no potential for further military service.

951212:  SJA review determined the case sufficient in law and fact.

951215:  Commanding General, 3d Force Service Support Group 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 19960126 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. 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 nonjudicial punishment proceedings for violations of Articles 86, 91, 92, 108, 128 and 134 of the UCMJ. The Applicant’s award suspended at his 19950324 NJP was vacated on 19950727 due to his Article 92 violation on 19950708. 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. 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. Relief not warranted.

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 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 P1900.16E), 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 128, assault.

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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