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USMC | DRB | 2006_Marine | MD0600032
Original file (MD0600032.rtf) Auto-classification: Denied


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
 DISCHARGE REVIEW
DECISIONAL DOCUMENT
FOR OFFICIAL USE ONLY

ex-PVT, USMC
Docket No. MD06-00032

Applicant’s Request
The application for discharge review was received on 20050922. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable. The Applicant requests a hearing before the Board in the Washington D.C. metropolitan area. The Applicant designated American Legion as the representative on the DD Form 293.

 Decision

A personal appearance discharge review was conducted in Washington, D.C. on 20060315. 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 and reason for discharge shall not change. The discharge shall remain Under Other Than Honorable Conditions by reason of misconduct due to a pattern of misconduct.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, submitted at the time of the hearing:

 “1. (Equity Issue) This former member opines that his Under Other Than Honorable Conditions discharge is inequitable because his command originally recommended that it be suspended for one month so that he could receive an Honorable separation.

2. (Equity Issue) This former member further requests that the Board consider provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct in assessing the merits of this application.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered [Applicant requested the Board consider the Applicant’s documentation as provided for the Applicant’s document review]:
Canceled Letter from Commanding Officer, Marine Aircraft Group-49 Detachment-A, Fourth Marine Aircraft Wing, dtd April 03, 2004
Canceled Letter from Commanding General, Headquarters, Fourth Marine Aircraft Wing, dtd March 31, 2004
Letter from Commanding General, Headquarters, Fourth Marine Aircraft Wing, dtd April 5, 2004
Character Reference Letter from Cpl J. M. S_, USMC, dtd October 16, 2003
Character Reference Letter from MS3 H_ J_, USN, dtd October 23, 2003
Character Reference Letter from Cpl U. K. L_, USMC, dtd November 4, 2003
Character Reference Letter from Sgt O. A. M_, USMC, dtd October 25, 2003
Character Reference Letter from SSgt P_ D. M_, USMC, dtd October 23, 2003
Character Reference Letter from MSgt E_ N. J_, USMC, dtd October 14, 2003 (2 pages)
Character Reference Letter from SSgt J_ A. T_, USMC, dtd March 14, 2006
Character Reference Letter from D_ S_, dtd March 24, 2005
Character Reference Letter from W_ M_, dtd March 24, 2005
Character Reference Letter from D_ S. W_, dtd March 13, 2006
Criminal Record Search, Mecklenburg County, North Carolina, dtd February 28, 2006 (2 pages)
Applicant’s DD Form 214 (Service 2)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    20000420 – 20000425               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 20000426             Date of Discharge: 20040415

 Length of Service (years, months, days):

 Active: 03 11 20
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence:    None
         Confinement:                       None

 Age at Entry: 19

 Years Contracted: 4

Education Level: 12                                 AFQT: 41

 Highest Rank: LCpl                                  MOS: 0121

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.9 (8)                                Conduct: 3.9 (8)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): National Defense Service Medal, Sea Service Deployment Ribbon, Navy Unit Commendation


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 :

001130:  Counseling: Advised of deficiencies in performance and conduct (Violation of Marine Corps regulations/Federal/State statutes for my involvement with civilian authorities over my alleged alcohol involvement on 001123 by drinking alcohol underage and driving. [Such] behavior was dangerous, brought discredit to the U. S. Marine Corps, and was prejudicial to good order and discipline), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
010905:  Counseling: Advised of deficiencies in performance and conduct (Violation of a Lawful Order. Specifically, on or about 2100, on 010718, at Camp Kinser, Okinawa, Japan, willfully violated a lawful Order to wit: BNQ 11100.1A, by smoking in the BEQ), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

020621:  Counseling: Advised of deficiencies in performance and conduct (Lack of maturity initiative, dependability and poor judgment. These deficiencies are evidenced by the numerous counseling sessions between you and your NCOIC and SNCOIC regarding your unauthorized absence from your appointed place of duty on several occasions...), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

020923:  Counseling: Advised of deficiencies in performance and conduct (Repeated violation of IAW AAFBI 31-205 aboard Andrews AFB; Speeding tickets on 020805 and 020827), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

020923:  Acknowledged understanding of eligibility but not recommended for promotion to Cpl for the month of October 02 Prom 1st Quarter because of repeated violation of IAW AAFBI 31-205 aboard Andrews AFB; Speeding tickets on 020805 and 020827. Applicant chose not to make a statement.

021012:  Involved in motor vehicle accident as the driver, extensive head injury requiring plastic surgery. Intoxicated. Found not in the line of duty.
         [Extracted from Timeline Chronology Listing, (Government Exhibit 9) and DD Form 2807-1 dated 040407].

021017:  Command Investigation initiated for LOD/Misconduct determination. [Extracted from Timeline Chronology Listing]

021212:  Acknowledged understanding of eligibility but not recommended for promotion to Cpl for the month of November and December 02 because of my poor performance and failure to comply to basic rules and regulation governed by the UCMJ. In addition to the numerous counseling’s which identified your substandard performance, lack of maturity, judgment and leadership qualities. Applicant chose not to make a statement.

021212:  Acknowledged understanding of eligibility but not recommended for promotion to Cpl for the month of January 03 because of my NJP on December 12, 2002 for Violation of Articles 86, 92 134 of the UCMJ: Article 86: absence without leave, Article 92: Failure to obey or regulation and Article 134: General Article: Incapacitated hindering performance of duties through prior wrongful indulgence in intoxicating liquor or drug. Applicant chose not to make a statement.

021212:  NJP for violation of UCMJ, Article 86: Absence without leave.
 Violation of UCMJ Article 92: Failure to obey order or regulation.
Violation of UCMJ Article 134: General Article.
         Award: Extra duty for 30 days, reduction to E-2. Not appealed.

021212:  Counseling: Advised of deficiencies in performance and conduct (Violation of Article 86: Absence without leave, in that the Marine was absent from his appointed place of duty on 7 September between 0700 to approximately 0840 and 8 September from 0700 to 0707. Violation of Article 92 Failure to obey or regulation in that the Marine disobeyed a lawful order to be in proper uniform and got to for his assigned burial detail on 7 Sep 02 at 0900. Article 134: General article: Incapacitation concerning performance of duties through admittance of alcohol consumption night prior to detail...), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

030115:  Counselor Assessment and Recommendation: Patient is a 22 y/o, African-American, unmarried USMC male E-3 w/02 Years, 05 Months active service. Patient was command referred to the SACC following a recent single vehicle roll-over accident in which he had been the driver. Based on his history, the command felt that alcohol could have been involved. Patient reported on time and appropriately attired. Patient wore a bandage around his head and stated he was still experiencing some pain/being treated for the aftereffects of the accident... Patient appears to meet DSM-IV-TR criteria for Alcohol Dependence (3 of 7) and Alcohol Abuse (1-4). Patient appears to be to be suitable for Intensive Outpatient Treatment as follows: (1) Withdrawal: Low level of concern-Pt. did not manifest classic withdrawal signs Bio/medical: High level of concern-Patient disclosed history of blackouts in addition to still undergoing medical treatment following vehicle roll-over; (3) Emotional/Behavioral: Low level of concern-Patient denied HI/SI, thoughts, intents, plans or means; (4) Treatment Acceptance/Resistance: Moderate level of concern Patient denies the existence of a drinking problem and does not appear motivated towards treatment; (5) Relapse Potential: High level of concern Patient’s attitude towards alcohol has not changed and he disclosed an inability/unwillingness to abstain from alcohol consumption. (6) Recovery environment: High level of concern-Patient will continue to reside in BEQ barracks environment (7) Operational commitments: High level of concern-Unit (MAG-49 Detachment at Andrew AFB, MD) deploys.
         Recommendation: Intensive Out-Patient.

030209:  Investigating Officer completes command investigation. [Extracted from Timeline Chronology Listing]
030401:  Counseling: Advised of deficiencies in performance and conduct (Assignment to the Substance Abuse Counseling Program on 021231 as a result of previous alcohol related incident), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

030415:  Applicant discharged after completion of outpatient rehabilitation at Triservice Addiction Recovery Unit, Andrews Air Force Base.
         Discharge Diagnosis: AXIS I: Alcohol Abuse, AXIS II: No diagnosis. AXIS III: [illegible].

030428:  NJP for violation of UCMJ, Article 111: Drunken operation of vehicle, on 021012.
         Award: Reduction to E-1. Applicant appealed on 030505. Appeal denied on 030516.
         
030709:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to Pattern of Misconduct. The least favorable discharge possible is under other than honorable conditions. The factual basis for this recommendation was due to NJP held on 021212, NJP held on 030428, page 11 counseling’s on 001130, 010905, 020621, 020923, 021212, and 030401.
030714:  SNM acknowledges processing and requests an Administration Discharge Board. [Extracted from Timeline Chronology Listing]

030729:  Counseling: Advised of deficiencies in performance and conduct (Being late on numerous occasions in the recent period, specifically for squadron PT on 030728, and disobeying a lawful order to be at prescribed place of duty), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
030815:  Final action on LOD investigation: Found not to be in the line of duty and due to own misconduct. USMC will not to recoup financial costs or time from SNM.

030822:  Commanding Officer requests service from Quantico OSJA to hold board. [Extracted from Timeline Chronology Listing]

030925:  Command indicates that Applicant is on leave until 031004 and that any pending surgeries are cosmetic only. [Extracted from Timeline Chronology Listing]

030930:  Due to Defense Counsel’s court schedule, board scheduled for 031105. [Extracted from Timeline Chronology Listing]

031121:  Board rescheduled for 031209. [Extracted from Timeline Chronology Listing]
031206:  Applicant stabbed in bar while intoxicated. [Extracted from DD Form 2807-1 dated 040407].

040322:  Commanding Officer, VMFA-321 recommended the Applicant’s under other than honorable conditions discharge by reason of misconduct due to pattern of misconduct. [unsigned].

040331:  Commanding General, Headquarters, 4 th MAW directed the Applicant’s discharge under other than honorable conditions discharge by reason of misconduct due to commission of a serious offense suspended for one month. Document is noted as “canceled.”
 [Document provided by Applicant and not contained in service record].

040331:  4 th MAW Adjutant, HQS, 4 th MAW Memorandum of Review: “SJA Comments: Reviewed Package. Found Sufficient in Law and Fact. Note: Board rec susp disch, both Sqdn and Grp COs have recom override of this recom. This decision at CA’s discretion. Note: corrective action dated 040504 reflects commanding general’s intent, expressed on 040330 to order separation of this Marine. Technical difficulties with system prevented completion of steps in system.” [unsigned]

040405:  Commanding General, Headquarters 4 th MAW directed the Applicant’s discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

040407:  Applicant was found fit for separation.

040415:  Counseling: Advised of deficiencies in performance and conduct (Violation of Articles 86 and 92 of the UCMJ. On 8 April 2004, Pvt P_ (Applicant) was authorized to take leave in order to take care of personal affairs due to his administrative separation. He was counseled by his SNCOIC and XO that the CO had directed him back from leave no later than 0730, 13 April 2004. He was UA, and failed to obey an order from the Commanding Officer, MAG-49, Det-A to return off of leave at 0730, 13 April 2004 and to be in the local Andrews AFB area on the night of 12 April 2004 for safe measures.), necessary corrective actions explained, sources of assistance provided and advised being processed for administrative separation.

050727:  NDRB documentary record review Docket Number MD05-00732 conducted. Determination: discharge proper and equitable; relief not warranted.
Service Record Book contains a partial Administrative Discharge package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20040415 by reason of misconduct due to a pattern of misconduct (A) 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 (B and C). The Board presumed regularity in the conduct of governmental affairs (D).

 By regulation, a discharge shall be deemed proper, unless it is determined that an error of fact, law, procedure, or discretion has substantially prejudiced the rights of the Applicant. The Applicant was discharged under other than honorable conditions by reason of misconduct due to a pattern of misconduct. A review of the Applicant’s service record convinced the Board that a preponderance of evidence exists to support the Applicant’s basis for separation by virtue of his nonjudicial punishment (NJP) on 20021212 for a violation of UCMJ Articles 86, 92 and 134, counseling/retention warning of 20021212 and 20030401, and subsequent NJP of 20030428 for violation of UCMJ Article 111 for drunken operation of a vehicle. The record further reveals that the Applicant was properly processed and notified for separation by reason of misconduct due to pattern of misconduct on 20030709 with a least favorable characterization of under other than honorable conditions. The Applicant elected to appear before an administrative discharge board. Based upon supporting documentation, the administrative discharge board found that a preponderance of the evidence supported the Applicant’s misconduct and recommended separation under other than honorable conditions. The administrative discharge board also recommended that the Applicant’s separation be suspended for a period of one month. On 20040322, the Commanding Officer, VMFA 321, recommended to Commanding General, 4 th MAW, that the Applicant be discharged under other than honorable conditions by reason of misconduct due to pattern of misconduct. On 20040331, the Commanding General, 4 th MAW directed the Applicant’s under other than honorable conditions discharge be suspended for a period of one month. This action was later cancelled, and on 20040405 the Commanding General, 4 th MAW directed the Applicant’s discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

The Applicant contends that his discharge is inequitable because his command originally recommended that his discharge be suspended for one month so he could receive an honorable discharge. The Applicant’s issue is without merit. The Applicant is correct in his assertion that there is evidence to suggest that appropriate authorities were considering the suspension of his discharge. Ultimately, however, the Commanding General, 4 th MAW, decided to disregard the admin board’s suspension recommendation and discharge the Applicant under other than honorable conditions. The Staff Judge Advocate’s letter of 20040331 and the Commanding General’s discharge authority letter of 20040405 support this conclusion. Despite the Applicant’s contentions, the NDRB could discern no impropriety or inequity in the Commanding General’s decision to disregard the suspension recommendation. The Applicant had no less than two NJPs and six counselings for misconduct and substandard performance. Despite the Applicant’s contentions, the Board could find no inequity in the Applicant’s characterization of service that might afford him relief. Thus, the Board concluded that relief is not warranted.

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 could be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities. The Board received and considered all of the Applicant’s submissions, including his character reference letters, employment history since discharge, and criminal records check. After careful consideration, the Board concluded the Applicant’s post-service achievements have been insufficient to mitigate his misconduct while in the Naval service. Relief denied.

The following is provided for the edification of the Applicant. The Applicant has exhausted his opportunities for review by the NDRB. The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of naval service, if he desires further review of his case.

Pertinent Regulation/Law (at time of discharge)

 A. Paragraph 6210, MISCONDUCT , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 31 Jan 97 until 31 Aug 01.

B. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety .

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

D. 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 .

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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