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USMC | DRB | 2005_Marine | MD0500689
Original file (MD0500689.rtf) Auto-classification: Denied

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

ex-LCpl, USMC
Docket No. MD05-00689

Applicant’s Request
The application for discharge review was received on 20050228. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a personal appearance hearing before the Board in the Washington National Capital Region. The Applicant did not list any representative on the DD Form 293. In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing. Subsequent to the application, the Applicant obtained representation by Veterans of Foreign Wars.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050727. 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: GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: MARCORSEPMAN Par. 6210.6.



PART I - APPLICANT’S ISSUES AND DOCUMENTATION


 Issues, as stated

Issues submitted by Applicant’s counsel/representative (Veterans of Foreign Wars) :
“1. Because the Applicant has presented no issues on which to base an argument, we ask that you review the evidence of record and change the discharge as appropriate.”

Applicant’s statement, dated April 14, 2005:

 “ To the members of the board:

I would like to petition the board to review my case and possibly upgrade my discharge. I served honorably from December 1992 to October of 1996. I completed a first term enlistment. I applied myself and was meritoriously promoted. I always gave my best and was always willing to share what I had.

I believe that the biggest contributing factor to my failure was my alcoholism. I drank heavily and I set a bad example. I wasn’t sure what to do about my drinking, and I wasn’t really sure if it was the cause of my problems. After I was discharged from the service I had to look at my drinking and take steps to stop.

I don’t believe that I would’ve made the same choices today that I made while I was drinking. I would like the board to review my case on the basis that I was Alcoholic, and that if I were able to stop I would have behaved differently. I’m not asking for special treatment. I would just like the board to look at how I’ve changed, and how I’m making better choices today.

Yours truly,
[signed]
 D_ B_ ( Applicant ) ”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Statement from the Applicant, dated April 14, 2005

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              921230 - 961106  HON
         Inactive: USMCR(J)                921217 - 921229  COG

 Period of Service Under Review :
Date of Enlistment: 961107               Date of Discharge: 990804

 Length of Service (years, months, days):

         Active: 02 08 28
         Inactive: None

 Age at Entry: 25                          Years Contracted: 3 (4 month extension)

 Education Level: 10 (GED)                          AFQT: 53

 Highest Rank: Sgt                          MOS: 3051

 Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency: 4.8 (2)                       Conduct: 4.7 (2)
Enlisted performance reports were also available to the Board for review.

 Military Decorations: None

 Unit/Campaign/Service Awards: NUC, MUC, GCM, NDSM, SSDR w/Star, CoC, LoA (4), Rifle marksmanship badge

 Days of Unauthorized Absence: None

 Character, Narrative Reason, and Authority of Discharge (at time of issuance):

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: MARCORSEPMAN Par. 6210.6.

 Chronological Listing of Significant Service Events :

961107:  Applicant reenlisted for 3 years.

 971128:  Applicant informed eligible but not recommended for promotion to Sgt for the month of December.

971203:  Counseled for deficiencies in performance and conduct. [Dropped from the Corporal’s course for what was described to be integrity an violation. Specifically, during final drill you motioned with your hand in order to provide a clue to the Marine being graded as to what the next movement was supposed to be - unfairly providing that Marine with information she was required to know by the time she was formally evaluated on drill movements. In this incident, you demonstrated exceptionally poor judgment.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
971209:  Applicant’s statement regarding CO level counseling held on 971203.

 981124:  NJP for violation of UCMJ, Article 91:
 Specification: Disobeyed GySgt R_ by contacting R_ M_, Marine DEP, when ordered not to at RSS Eugene, RS Portland.
Violation of UCMJ, Article 92:
Specification: Violated DepO 1100.4A by touching R_ M_, Marine DEP, at RSS Eugene, RS Portland.
Violation of UCMJ, Article 134:
Specification: Brought discredit upon the Armed Forces by physically grabbing R_ M_, Marine DEP, at RSS Eugene, RS Portland.
Awarded forfeiture of $731.00 per month for 2 months. Forfeiture suspended for 6 months. Not appealed.
981217:  Vacate suspended forfeiture awarded at CO’s NJP dated 981124.

 981218:  Commanding Officer’s recommends Applicant’s relief for cause.

 981218:  Applicant’s statement concerning relief for cause.

 981222:  First Endorsement regarding relief for cause, recommending approval.

981230:  Commanding General, MCRD/WRR approved Applicant’s relief for cause due to recruiter malpractice. Applicant’s MOS of 8411 is voided.

990226:  Special Court Martial:
         Charge I: violation of the UCMJ, Article 92 (4 specifications):
         Specification 1: Did on or about 981025, violate a lawful general order, DepotO 1100.4A dtd 920521, by wrongfully kissing Ms. A_ B_, a member of the DEP.
         Specification 2: Did on or about 981027, violate a lawful general order, DepotO 1100.4A dtd 920521, by wrongfully engaging in sexual intercourse with Ms. A_ B_, a member of the DEP.
         Specification 3: Did on or about 981108 and 991116, violate a lawful general order, DepotO 1100.4A dtd 920521, by wrongfully engaging in sexual intercourse with Ms. A_ B_, a member of the DEP.
         Specification 4: Did on or about 981206, violate a lawful general order, DepotO 1100.4A dtd 920521, by wrongfully soliciting nonprofessional, personal relationship with Ms. A_ B_, a member of the DEP.
         Findings: to Charge I and specifications 3 and 4 thereunder, guilty, to specifications 1 and 2 thereunder, not guilty.
         Sentence: Hard labor for 45 days, forfeiture of $250 per month for 2 months, reduction to E-3.
         CA 990313: Sentence approved and ordered executed.

990315:  Applicant issued letter of reprimand for misconduct.

990315:  Applicant notified of intended recommendation to the Secretary of the Navy that you be discharged by reason of misconduct due to the commission of a serious offense. The least favorable characterization of service which you may receive is a general (under other than honorable conditions).
990317:  Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

990329:  Commanding Officer, 12 th Marine Corps District, San Diego, CA forwarded recommendation of approval of discharge under other than honorable conditions.

990331:  Applicant’s statement regarding letter of reprimand.

 990601:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to the commission of a serious offense, that the misconduct warranted separation, and recommended the Applicant’s general (under honorable conditions) discharge.

990629:  SJA review determined the case sufficient in law and fact.

990629:  Commander, MCRD/WRR San Diego, CA recommended to Secretary of the Navy that Applicant be discharged general (under honorable conditions) by reason of misconduct due to the commission of a serious offense.

Complete discharge package not contained in service record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19990804 general (under honorable conditions) for misconduct due to the commission of a serious offense (A and B). After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D). The presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package (E).

When a Marine’s service has been honest and faithful, it is appropriate to characterize that service as honorable. A general 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 a special court-martial conviction for violations of Articles 91, 92 and 134 of the UCMJ. 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 Applicant contends his “alcoholism” contributed to his misconduct. 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.

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 relevant 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 31 January 1997 until 31 August 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, violation of a lawful general order/regulation.
C. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety .

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

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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