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

 ex-LCpl, USMC
Docket No. MD02-00796

Applicant’s Request

The application for discharge review, received 020513, 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 030206.  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, as submitted

1.  I completed four years of active duty 12-30-96 thru 12-28-00 which should have resulted in an honorable discharge, I wish to submit the following information and documents to support my position.  Upon investigation of my discharge I was led to believe that a hearing which I initially requested would not be in my best interest and that writing a letter to the CG would be best because he would personally review my case.  I was misled by military attorney Captain C_.  At the time of my discharge my command was under investigation for racism and mistreatment of their troops which I feel took part in my situation.  I was given a page eleven every month for not being recommended for Corporal which I feel was unjust.  I was not given my good conduct metal for unknown reasons.  My 1SGT never signed for it nor issued it to me because him and my command never wanted me to have it.  Peers MGYSGT J_. The civil charges, which were used to support my separation, were not formal at the time and were under investigation.  I was never reduced in rank and I received one NJP during my term for driving on base suspension.  My disciple history is very minor It consists of a 14 day restriction followed by a discharge from the military (discipline in terms of my discharge was not fair or a matter based on progressive discipline.  With regards to the two civil matters I offer the following information, which can be verified by court document attached.  Incident that occurred in Rhode Island was dismissed.  As to the charge in North Carolina I was found guilty of possession of stolen property and given one-year probation, which is a misdemeanor count. These actions took place well after my discharge approximately one year (December 3, 2001).  It’s obvious I’ve been punished by military separation and civil actions, which appear to be double jeopardy, as the UCMJ, which prohibits this, did not protect me.  Thank you in advance for your time and consideration towards upgrading my discharge to an Honorable.

Applicant marked the box "I HAVE LISTED ADDITIONAL ISSUES AS AN ATTACHMENT TO THIS APPLICATION."  None were found.

Documentation

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

Seven pages from Applicant's service record
Applicant's DD Form 214
Character reference from Assistant Shift Manager, Foxwoods Casino, undated
Letter from Applicant's step-mother, undated
Letter from Applicant's father dated November 16, 2000
Applicant's statement dated November 15, 2000
North Carolina court papers dated December 3, 2001
Character reference from Rev, Our Redeemer Evangelical Lutheran Church dated November 16, 2000
North Carolina court papers dated December 20, 2001

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		961119 - 961230	COG

Period of Service Under Review:

Date of Enlistment:  961231			Date of Discharge:  001228

Length of Service (years, months, days):

	Active:    03  11  28
	Inactive:  None

Age at Entry:  17 Parental Consent		Years Contracted:  4

Education Level:  12				AFQT:  38

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.2 (5)				Conduct:  4.2 (5)

Military Decorations:  None

Unit/Campaign/Service Awards:  OSR, MM, GCM

Days of Unauthorized Absence:  4

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:

980423:	Counseled for deficiencies in performance and conduct.  [Operating a motor vehicle without a drivers license.  This type conduct is unacceptable and will not be tolerated.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

980717:	Counseled for deficiencies in performance and conduct.  [Disobeying a lawful order, and insubordination toward an NCO.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

990929:	Applicant evaluated as a result of command referral and found to be alcohol dependent.

991001:	Applicant diagnosis was confirmed by a credentialed provider as alcohol dependence.

000106:	Applicant informed eligible but not recommended for promotion to Cpl for the period of Jan 2000 due to pending civil action.

000126:	NJP for violation of UCMJ, Article 92:
Specification: Violate BO 5560.21C, by driving a vehicle on base while on a NC state drivers license suspension and while having base driving privileges revoked.
Awarded forfeiture of $299.00 per month for 1 month, restriction and extra duties for 14 days.  Not appealed.

000126:	Counseled for deficiencies in performance and conduct.  [Substandard performance, poor judgement, lack of self discipline, lack of integrity and failure to follow rules and regulations.  Applicant’s actions have displayed a total disregard for military and civilian authorities.  Driving on base revocation, driving on North Carolina state suspension, not properly preparing for nonjudicial punishment proceeding (poor military appearance), underage drinking and disobeying lawful orders are serious violations and will not be tolerated.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

000217:	Applicant scheduled to report the Alcohol Treatment Facility for treatment.

000302:	Alcohol Treatment Facility:  Applicant is a failure of treatment for 
alcohol/substance abuse.  Applicant evaluated and counseled regarding his substance abuse.

000303:	Applicant discharged from treatment as minimally successful.

000410:	Applicant informed eligible but not recommended for promotion to Cpl for the period of April 2000 due to civil action.

000519:	Applicant informed eligible but not recommended for promotion to Cpl for the period of May 2000 due to civil action.

000607:	Applicant missed appointment with continuing care at the Alcohol Treatment Facility.

000621:	Applicant missed appointment with continuing care at the Alcohol Treatment Facility.

000626:	Applicant discharged from treatment as a treatment failure due to repeated absences from the program.

000628:	Counseled for deficiencies in performance and conduct.  [Discharge a treatment failure from the Alcohol Treatment Facility on 000628, more specifically not following the prescribed After Care programs and being discharged by ATF Staff Clinical Director/Doctor.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

000824:	Applicant informed eligible but not recommended for promotion to Cpl for the period of August 2000 due to civil action.

000915:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and by reason of alcohol rehabilitation failure.

000918:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

001026:	Applicant notified that misconduct evidenced by the Applicant’s arrest for 
robbery with a dangerous weapon and arrest for assault upon a police officer will be used to further support the basis for administrative separation.

001114:	Applicant waived administrative discharge board.  Applicant submitted a statement dated 001117.

001201:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and by reason of alcohol rehabilitation failure.  The factual basis for this recommendation was formal counseling (Page 11 entry per paragraph 6105 of the reference) on 980423 for driving without a valid license, formal counseling on 980717 concerning not obeying a lawful order by a Non-Commissioned Officer, and a nonjudicial punishment conviction on 000126 for driving on a suspended license.  The basis for the alcohol rehabilitation failure is being terminated from the Intensive Outpatient Program for treatment of alcohol dependent servicemen at Naval Hospital on 000628, Camp Lejeune due to repeated absences from the program. 

001220:	SJA review determined the case sufficient in law and fact.

001221:	GCMCA [Commanding General, Marine Corps Base, Camp Lejuene] 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 001228 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).

Issue 1.  A characterization of service of under other than honorable conditions is warranted when the member's conduct constitutes a significant departure from that expected of a Marine.  The Applicant’s service was marred by award of nonjudicial punishment (NJP) on one occasion, alcohol rehabilitation failure, negative involvement with civil authorities, and adverse counseling entries on other occasions.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for an honorable characterization of service.  A civil conviction is not required as a basis for misconduct demonstrated by discreditable involvement with civil authorities.  Further, there is no impropriety or inequity committed if civilian convictions are considered as a basis for administrative separation.  The Applicant’s conduct supports an under other than honorable characterization of service even if his two arrests while in service are not considered.  The record is devoid of evidence that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  An upgrade would be inappropriate.  It must be noted that most Marines serve honorably and well and therefore earn honorable discharges.   In fairness to those Marines, commanders and separation authorities are tasked to ensure that undeserving Marines receive no higher characterization than is due.  Relief denied.

The Applicant’s discharge characterization accurately reflects his service to his country.  The discharge was proper and equitable.  Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question.  No such error or inequity is evident during the Applicant’s enlistment.  Additionally, 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 the service.  Relief not warranted.

The Applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his 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 Jan 97 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, failure to obey a lawful general order.

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