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


FOR OFFICIAL USE ONLY


ex-Pvt, USMC
Docket No. MD05-01267

Applicant’s Request

The application for discharge review was received on 20050727. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions). The Applicant requests a documentary record discharge review. The Applicant did not designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060316. 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 by reason of misconduct due to a pattern of misconduct.

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PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“I am trying to move forward in life. I feel like this is holding me back. I am currently working as a computer repair technician and have been in no trouble since discharged.”

Applicant’s Remarks: (Taken from the DD Form 293.)

“I have been working hard to get my life back on track. I currently plan on furthering my education starting next fall. I am trying to get my A+ and MCSE certifications.”

Documentation

Only the service record book and medical record were reviewed. The Applicant did not provide additional documentation for the Board’s consideration.

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PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

         Inactive: USMCR (DEP)    20010829 - 20020804      COG
         Active: None

Period of Service Under Review :

Date of Enlistment: 20020805             Date of Discharge: 20040402

Length of Service (years, months, days):

Active: 01 07 28
         Inactive: None

Time Lost During This Period (days):

         Unauthorized absence: None
         Confinement:              None

Age at Entry: 18

Years Contracted: 4

Education Level: 12                                 AFQT: 53

Highest Rank: LCpl                                  MOS: 2844

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency: NA*                                    Conduct: NA*

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): National Defense Service Medal, Rifle Expert Badge 2 ^nd Awd.

* Not available.

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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 :

030403:  Counseling: Advised of deficiencies in performance and conduct (Violating Art. 92 UCMJ. Specifically, charged off base with driving under the influence of alcohol while under the age of 21. Applicant’s DOD driving privileges are hereby suspended for a period of one year.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

031001:  Counseling: Advised of deficiencies in performance and conduct (Not in adherence with the Marine Corps Body Composition Program standards and are not eligible for the Physical Performance Evaluation. Being assigned to a 6-month BCP as a 1 ^st assignment.), necessary corrective actions explained and sources of assistance provided.

031003:  NJP for violation of UCMJ, Article 92: In that PFC H_(Applicant), 8 ^th Comm Bn, Camp Lejeune North Carolina, having knowledge of a lawful order not to drink and drive underage, an order which it was his duty to obey, on or about 8 September 2003, fail to do the same.
         Award: Forfeiture of $645 per month for 2 months, restriction and extra duty for 45 days. Restriction and extra duty for 15 days suspended for 6 months. Not appealed.

031213:  Naval Hospital, Camp Lejeune: Applicant admitted to 4-A ward after an alcohol-related incident in which he attempted to hang himself, assaulted peers who intervened and left his barracks against the orders of the OOD.
         Narrative Summary indicates the Applicant attended SARP twice prior to this alcohol-related incident.

031216:  Applicant discharged from Naval Hospital, Camp Lejeune.
         Diagnoses:
         AXIS I: 
Alcohol dependence with physiological dependence.
         Major depressive disorder, moderate, recurrent.
         Rule out substance-induced mood disorder.
         Attention deficit/hyperactivity disorder (by history).
         AXIS II:
         Antisocial and borderline traits.
         AXIS III:
None/noncontributory.            
         AXIS IV: Global Assessment of functioning: Admission 45-50, Discharge 56-60.
         Recommendations/Plan:
         ...The [Applicant] is Psychiatrically Fit for Full Duty... The evaluating Psychologist recommends administrative separation due to alcohol abuse rehabilitation failure.

031217:  Restriction and extra duty awarded at NJP on 031003 vacated.

040219:  Substance Abuse Rehabilitation Program, Naval Hospital, Camp Lejeune: Applicant refused treatment for substance abuse and was counseled regarding treatment availability at a VA facility after discharge.

040226:  NJP for violation of UCMJ, Article 86: In that PFC B_ M. H_(Applicant), 8 ^th Comm Bn, Camp Lejeune, North Carolina, did, on or about 13 December 2003, without authority, fail to go to his appointed place of duty, to wit: FC-300.
         Viol. Art 91 UCMJ: In that LCp1 B_ M. H_(Applicant), 8th Comm Bn, Camp Lejeune, North Carolina, was, on or about 13 December 2003, disrespectful toward Cpl L_ a noncommissioned officer, then known by the said Marine to be a noncommissioned officer by saying “f___ off” or words to that effect.
Viol. Art. 92 UCMJ: In that LCp1 B_ M. H_(Applicant), 8th Comm Bn, Camp Lejeune, North Carolina, having knowledge of a lawful order not to consume alcohol while under the legal age of 21, an order which it was his duty to obey, did, on or about 13 December 2003, fail to obey the same.
Viol. Art. 92 UCMJ: In that LCpl B_ M. H_(Applicant), 8th Comm Bn, Camp Lejeune, North Carolina, having knowledge of a lawful order to stay at the battalion command post while the OOD called his chain of command, an order which it was his duty to obey, did, on or about 13 December 2003, fail to obey the same.
Viol. Art. 108 UCMJ: In that LCp1 B_ M. H_(Applicant), 8th Comm Bn, Camp Lejeune, North Carolina, did, on or about 13 December 2003, without proper authority, willfully damage a secretary, military property of the United States.
Viol. Art. 134 UCMJ: In that LCp1 B_ M. H_(Applicant), 8th Comm Bn, Camp Lejeune, North Carolina, was on or about 13 December 2004, drunk and disorderly, which conduct was of a nature to bring discredit upon the Armed Forces.
Viol. Art. 134 UCMJ: In that LCp1 B_ M. H_(Applicant), 8th Comm Bn, Camp Lejeune, North Carolina, did, on or about 13 December 2004, intentionally injure himself by wrapping a bungee cord around his neck.
Award: Forfeiture of $596 per month for 2 months, restriction and extra duty for 45 days, reduction to E-1. Forfeiture of $596 for 1 month suspended. Not appealed.

040308:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct. The factual basis for this recommendation was the Applicant’s pattern of misconduct. Applicant notified the least favorable characterization of service possible is under other than honorable conditions.

040308:  Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.

040308:  Commanding Officer, 8 ^th Communication Battalion, recommended Applicant’s discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct. The factual basis for this recommendation was due to Private H_(Applicant)’s pattern of misconduct. His presence in the unit is detrimental good order and discipline. He has an alcohol problem and has refused treatment by the Substance Abuse Rehabilitation Program. Because of his numerous disciplinary infractions, he no longer has access to classified material and has been reassigned to an administrative position. He is not able to perform key aspects of the military occupational specialty for which he was trained. Further, Private H_(Applicant) was placed on the Body Composition Program on 1 October 2003, and since then he has gained 4 percent body fat (now 5 percent over the 18 percent maximum based on his PFT) and 21 pounds (now 27 pounds over the 186 pound maximum based on his height). He is a terrible example of a Marine and has strayed far from our Core Values. The only appropriate course of action for this Marine is administrative separation with an other than honorable characterization of service.
Commanding Officer’s comments: “Private H_(Applicant) was given a 6105 counseling on 3 April 2003 for driving while under the influence of alcohol and consuming alcohol while under the legal age. On 3 October 2003 Private H_(Applicant) was convicted at company-level nonjudicial punishment for violation of article 92; failure to obey a lawful order not to drive while under the influence of alcohol, and not to consume alcohol while underage. He was awarded 45 days restriction, 45 days extra duties, and forfeiture of $645 per month for 2 months. Fifteen days restriction and fifteen days extra duties were suspended for six months. On 26 February 2004 Private H_(Applicant) was awarded battalion-level nonjudicial punishment for the violation of article 86, unauthorized absence; article 91, insubordinate conduct towards a noncommissioned officer; article 92 x 2, disobedience of a lawful order not to consume alcohol while underage and failure to obey a lawful order to remain at the battalion command post; article 108, for willfully and wrongfully damaging military property; and article 134 x 2, drunk and disorderly and self-injury without intent to avoid service. He was awarded a forfeiture of $596 per month for 2 months, 45 days restriction, 45 days extra duties and reduction to Private. Forfeiture of $596 pay for one month was suspended for 6 months. ”

040308:  SJA review determined the case sufficient in law and fact.

040319:  GCMCA, Commander, II Marine Expeditionary Force directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

040325:  Applicant found physicaly qualified for separation.


Service Record was missing elements of the Summary of Service.

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PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20040402 by reason of misconduct due to a pattern of misconduct (A and B) with a service characterization of under other than honorable conditions. 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 (C and D). The Board presumed regularity in the conduct of governmental affairs (E).

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 being charged off base with driving under the influence of alcohol while under the age of 21, failing to adhere to Marine Corps Body Composition Program standards, and two nonjudicial punishment proceedings for violations of Articles 86, 91, 92, 108 and 134 of the UCMJ. The Applicant’s violations of Articles 91, 92, 108 and 134 (self-injury without intent to avoid service) are serious offenses. The Applicant was also a rehabilitation failure. 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 that his discharge should be upgraded in order to “move forward in life” and indicates that he intends to further his education. Regarding the Applicant’s educational aspirations, the Veterans Administration determines eligibility for post-service benefits not the Naval 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. Concerning the Applicant’s desire to “move forward in life,” the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. In the Applicant’s case, the Board could discern no impropriety or inequity and therefore consider his discharge proper and equitable. Relief denied.

The Applicant contends that his discharge should be upgraded because he has, “been in no trouble since discharged.” 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 post-service 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. The Applicant can provide documentation to support any claims of post-service accomplishments or any additional evidence related to this 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 91, insubordinate conduct, Article 92, disobey order/regulation, Article 108, willfully damage government property and Article 134, self-injury without intent to avoid service.

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, Para 211, Regularity of Government Affairs .

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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