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

ex-LCpl, USMC
Docket No. MD01-00257

Applicant’s Request

The application for discharge review, received 001228, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested 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 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 three to two 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

Prior to the documentary discharge review, the applicant introduced no issues as block 8 on the DD Form 293 is blank. 

Documentation

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

Statement from applicant

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		950228 - 950918	COG

Period of Service Under Review:

Date of Enlistment:  950919		Date of Discharge:  990416

Length of Service (years, months, days):

	Active:    03  06  28
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  74

Highest Rank:  Cpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.5 (11)		Conduct:  4.4 (11)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, Certificate of Appreciation, Letter of Appreciation (2)

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:

960312:	Counseled for deficiencies in performance and conduct.  [Stealing a pair of sunglasses from MCX along with your immaturity and lack of judgement.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued

960325:	NJP for violation of UCMJ, Article 121:
Specification: Stole a pair of sunglasses on 1400, 16Mar96.
Awarded forfeiture of $490.00 per month for 1 month, restriction and extra duties for 45 days.  Restriction and extra duty suspended for 6 months.  Not appealed.

980227:	Applicant arrested by Jacksonville PD and charged with DWI .18 and possession of marijuana.

980304:	Applicant released from civil authorities.

980311:	Counseled for deficiencies in performance and conduct.  [Failure to maintain government property.  Specifically military ID card two in last 6 months.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued

980324:	NJP for violation of UCMJ, Article 111:
Specification: Driving while under the influence of alcohol with a Blood Alcohol Content (BAC) of .18 on 27Feb98.
Awarded restriction and extra duties for 30 days.  Not appealed.

980511:	Applicant informed eligible but not recommended for promotion to Cpl the months of May, June 1998 because of lack of leadership skills.

980622:	Applicant informed eligible but not recommended for promotion to Cpl for the months July-Sept 1998) because of lack of leadership and recent NJP.

980830:	Applicant arrested by Jacksonville PD and charged with DWI .13.

981206:	Applicant arrested by Jacksonville PD and charged with DWI .13.

990108:	Applicant diagnosed as alcohol dependent.

990128:	Letter to CO stating the applicant is scheduled for treatment on 26Feb99 at Alcohol Treatment Facility.

990129:	NJP for violation of UCMJ, Article 111:
Specification: Physically control a vehicle while having a BAC of .13 on 6Dec98.
Awarded forfeiture of $286.00 per month for 1 month, restriction and extra duties for 14 days.  Not appealed.

990202:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

990202:  	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.

990225:	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 the page 11 and page 12 entries documenting your offenses. 

990303:	SJA review determined the case sufficient in law and fact.

990303:	GCMCA [Commanding General, 2d Force Service Support Group, Camp Lejeune, NC] 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 990416 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, in a three to two decision, that the discharge was proper and equitable (D and E).

The applicant introduced no decisional issues for consideration by the Board.  However, in considering his request for upgrade in order to qualify for disability benefits, the Board offers the following.  A less than honorable discharge is not necessarily a bar to VA disability benefits or treatment.  The VA reviews each application on its merits.  

The NDRB is authorized to consider post-service factors in the recharacterization of a discharge (D).  However, 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 be found to have existed during the period of enlistment in question.  No such error or injustice is evident in the applicant’s service record.  The applicant received non-judicial punishment for violations of the UCMJ on three occasions.  Additionally, the applicant was arrested three times for DUI during this period of enlistment, and those alcohol-related offenses were the subject of several adverse counseling entries.

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, can be considered.  In determining whether a case merits a change based on post-service conduct, the NDRB considers the length of time since discharge, the applicant's record of community service, employment, conduct, educational achievements, and family relationships.  In reviewing the applicant’s post service, the Board was impressed with the efforts he has begun to make in attempting to recoup his reputation which has been sullied by his misconduct in the Marine Corps.  NDRB experience has shown that applicants with less than five years sobriety usually have not had sufficient opportunity to demonstrate continuing, positive contributions to society.  Therefore, relief will not be granted at this time.  The applicant is reminded that he remains eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge.  Representation at a personal appearance hearing is highly recommended. 

 The possibility of favorable action in the applicant’s case will increase with the amount of time he maintains an alcohol and drug free lifestyle.  Verifiable documentation of a clean and sober lifestyle is essential along with proof of no further involvement with police, steady employment, stable family life, and service to the community. 

 The applicant is encouraged to continue his education, remain sober, and apply for a personal appearance hearing prior to 16 April, 2014.

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 121, larceny.

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