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

ex-PVT, USMC
Docket No. MD01-00218

Applicant’s Request

The application for discharge review, received 001211, requested that the characterization of service on the discharge be changed to general/under honorable conditions.  The applicant requested a documentary record discharge review.  The applicant did not list any representative on the DD Form 293.  Subsequent to the application, the applicant obtained representation by the American Legion..

Decision

A documentary discharge review was conducted in Washington, D.C. on 010601.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service.  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

1.  (Equity Issue) This former member avers that his character of service is too harsh because the USMC only considered the negative aspects of his service and none of the positive.  He opines that had both been considered, his overall service record would support separation under honorable conditions and on this basis petitions the Board's relief.

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

Documentation

In addition to the service record, the following additional documentation, submitted by the applicant, was considered:

Copy of DD Form 214
Letters of Appreciation (2)
Meritorious Mast Certificate
Certificate of Appreciation
Certificate of Commendation

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None
	Inactive: USMCR(J)		960930 - 961021	COG

Period of Service Under Review:

Date of Enlistment:  961022		Date of Discharge:  990513

Length of Service (years, months, days):

	Active:  02  07  21
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  94

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.05 (7)		Conduct:  3.6(7)

Military Decorations:  None

Unit/Campaign/Service Awards:  Meritorious Mast, 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:

980122:	NJP for violation of UCMJ, Article 92: Did on 971122 at approx. 2030 hrs, violate MCASO 1746.1T(Alcohol Beverage Control) by possessing alcoholic beverage while being under the age of 20 years old, violation of UCMJ Article 92: Did on 971116 at approx. 1530 hrs, violate MCASO 1746.1T by drinking alcoholic beverage while being under the age of 20 years old at the T-Club, MCAS, Iwakuni, violation of UCMJ, Article 121: Did on 971116 at time unknown, steal a lazer light from the T-Club value of the lazer light at $735.00, at, MCAS, Iwakuni, Japan.
	Award:  Forfeiture of $400.00 per month for 2 months, restriction for 45 days, extra duty for 30 days, reduction to E-1.  Not appealed.

980710:	NJP for violation of UCMJ, Article 92: Did on or about 2318, 980706, violate a lawful general order, to wit: BnO 1700.3G, by drinking under the legal age, violation of UCMJ Article 111: Did on or about 2318, 980706, physically control a passenger car, with a .19 BAC, on Camp Lejeune, NC.
	Award:  Correctional Custody for 30 days, forfeiture of $463.00 per month for 1 month.  Not appealed.

980807:	Counseled for deficiencies in conduct.  [Violation of MCO P1020.34F, specifically, body piercing].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued

980807:	Counseled for deficiencies in conduct.  [Specifically, for your lack of judgment and substandard conduct].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued

980813:	Alcohol Treatment Facility Substance Abuse Evaluation found applicant alcohol dependent, diagnosis confirmed by a credentialed provider.

981112:	NJP for violation of UCMJ, Article 92: Did on or about 981104 violate a lawful general order, to wit: MCO 1700.22D consumption of alcohol under the legal age, violation of UCMJ Article 92: Did on or about 981104, violate a lawful general order, to wit: BnO 1700.3G, by consuming alcohol beverages within 6 hours prior to reveille.
	Award:  Forfeiture of $463.00 per month for 2 months (suspended for 6 months), restriction for 60 days (suspended for 6 months), reduction to E-1.  Not appealed.

981218:	NJP imposed and suspended on 981112 for a period of 6 months is hereby vacated and the punishment is ordered executed this date.
 
990107:	NJP for violation of UCMJ, Article 134: Did on or about 981231, break Battalion Commanders restriction, by going to the exchange, wearing civilian attire, and having a visitor in his barracks room, violation of UCMJ Article 86: Did on or about 0900, 990101, absent himself from his appointed place of duty, to wit: break Battalion restriction check-in at Bldg FC 400, and did remain so absent until 0910, 990101.
	Award:  Restriction and extra duty for 45 days.  No indication of appeal in the record.

990120:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 86(3 Specifications), Spec 1:  Did on or about 0900, 990117, absent himself from his appointed place of duty, to wit: Restriction muster at FC400, located at CamLej, NC., and did remain so absent until on or about 1100, 990117, Spec 2:  Did on or about 0700, 990118, absent himself from his appointed place of duty, to wit: Restriction muster at FC400, located at CamLej, NC., and did remain so absent until on or about 0712, 990118, Spec 3:  Did on or about 0900, 990118, absent himself from his appointed place of duty, to wit: Restriction muster at FC400, located at CamLej, NC., and did remain so absent until on or about 0913, 990118.
	Finding:  to Charge I and specifications 1,2, and 3 thereunder, guilty.
	Sentence:  Confinement for 30 days, forfeiture of $639.00 pay per month for 1 month.
	CA action 990122:  Sentence approved and ordered executed.

990303:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

990304:  	Applicant advised of his 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.

990304:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.  The factual basis for this recommendation was your past record of misconduct, i.e. Squadron NJP on 980122 for 2 counts of drinking under age, and stealing laser light of a value of $735.00.  Bn NJP on 980710 for drinking under the legal age and physically controlling a car with a BAC .19.  Bn NJP on 981112 for drinking under the legal drinking age and consuming alcohol beverage within 6 hours of reveille.  Bn NJP on 990107 for breaking Battalion Commanders restriction and UA for a restriction muster.  SCM on 990120 for three specifications of unauthorized absence.  

990311:	SJA review determined the case sufficient in law and fact.

990319:	GCMCA [Commanding General] 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 990513 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).

The applicant’s first issue states:  “(Equity Issue) This former member avers that his character of service is too harsh because the USMC only considered the negative aspects of his service and none of the positive.  He opines that had both been considered, his overall service record would support separation under honorable conditions and on this basis petitions the Board's relief.”  After careful review of the applicant’s service record the Board found the applicant had four NJP’s and one Summary Court Martial conviction.  The record shows the applicant was repeatedly counseled and warned about the negative consequences of his misconduct.  The Board found the negative aspects of this former serviceman far outweighed his positive contributions.  Relief is denied.

The applicant’s second issue states:  “(Equity Issue) This former member further requests that the Board include provision of SECNAVINST 5420.174C., enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of his application.”  The NDRB is authorized to consider post-service factors in the re characterization of a discharge.  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 the civilian life subsequent to leaving the service.  Normally, to permit relief, an error or injustice must have been found to have existed during the period of enlistment in question.  Outstanding post-service conduct, 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, may be considered by the NDRB.  The applicant failed to provide documentary evidence to demonstrate his sobriety, positive community service, employment history, and clean police record.  Relief is not warranted.

The applicant is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge.  Representation at personal appearance hearing is recommended

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 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 92, violation of a lawful order, Article 111, drunken driving, Article 121, larceny, and 134, breaking restriction.

C.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

D.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

E.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

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 “afls14.jag.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:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023