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

 ex-Pvt, USMC
Docket No. MD02-01029

Applicant’s Request

The application for discharge review, received 020710, 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 030410.  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 had a medical discharge approved by the PEB in D.C. I was to be discharged on 991215 with service pay, but on like Thanksgiving I got in trouble, and was summary court martial.  They took my medical discharge and turned it into an admin separation.  I’m asking my discharge be upgraded to honorable because I can't get any benefits, and I have a serious medical condition (my back) (severe epidermal fibrosis) I had one surgery in the Marine Corps and I now need another one again.  And I can't do my job that I did in the service.  So I'm asking for my discharge be upgraded so I can go to college and use the assistants of the VA in my attempts to better myself.  Please take this in consideration.  Thank you.

Documentation

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

Meritorious Mast certificate, dated September 20, 1999
Meritorious Mast certificate, dated October 16, 1998
Diploma dated August 23, 1998 to October 15, 1998
School of Infantry certificate dated August 21, 1998

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		980417 - 980426	COG

Period of Service Under Review:

Date of Enlistment:  980427		Date of Discharge:  000229

Length of Service (years, months, days):

	Active:    01  10  03
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  53

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.9 (6)			Conduct:  3.9 (6)

Military Decorations:  None

Unit/Campaign/Service Awards:  MM

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:

981218:	NJP for violation of UCMJ, Article 92:
Specification 1: Failure to obey III MEF Policy Memo 1-97 and BnO 1700.2A by wrongfully consuming alcohol while not of legal age to do so on 981203.
Awarded forfeiture of $519.00 per month for 2 months, restriction and extra duties for 45 days, reduction to Pvt.  Forfeiture suspended for 6 months.  Not appealed.

990226:	Applicant completed Alcohol IMPACT Course.

990302:	Counseled for deficiencies in performance and conduct.  [Alcohol related incident, specifically: underage drinking on 03 Dec 98.  SNM was interviewed by SACO SNCOIC on 12 Jan 99 and was recommended for CSACC initial interview 19 Jan 99.  CSACC corrected action is to attend Alcohol IMPACT course.  Member completed the course on 26 Feb 99.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

990513:	NJP for violation of UCMJ, Article 92:
Specification: Violate III MEF Policy Memo 1-98 by consuming alcohol while under the legal age to do so on 990424.
Awarded forfeiture of $100.00 per month for 2 months, restriction and extra duties for 45 days.  Not appealed.

990601:	Vacate suspended forfeiture awarded at CO's NJP dated 981218.

990615:	Counseled for deficiencies in performance and conduct.  [Underage drinking.  Specifically, on 990424 violated Marine Corps Base Japan Order 1700.1A, by consuming alcohol under the legal age to do so.  This conduct is prejudicial to good order and discipline, and will not be tolerated.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

990719:	NJP for violation of UCMJ, Article 134:
Specification: Utter a worthless check in the amount of $300.00 to AAFES on 990430.
Awarded Restriction and extra duties for 45 days.  Not appealed.

990809:	Counseled for deficiencies in performance and conduct.  [Lack of professionalism and conduct contrary to good order and discipline stemming from financial irresponsibility for issuing check(s) without sufficient funds to cover the amount of check(s).]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

991206:	Summary Court-Martial.
	Charge I: Violation of the UCMJ, Article 91 (2 specs):
	Specification 1: Assault Cpl by grabbing , pushing and holding the Cpl against the wall with hands and body on 991120.
	Specification 2: Willfully and wrongfully disobey an order from Cpl on 991120.
	Charge II: violation of the UCMJ, Article 92:
	Specification: Violate a lawful order to wit: MCBJO 1600.1B(2)d, by wrongfully consuming alcohol while under the lega1 age of 21 on 991120.
	Chare III: Violation of the UCMJ, Article 134:
	Specification: Drunk and disorderly on 991120.
	Finding: To Charge I and II the specifications thereunder, guilty, to Charge III and the specification thereunder, not guilty.
	Sentence: Confinement for 21 days.
	CA action 991206: Sentence approved and ordered executed.

000110:	Applicant evaluated by a substance abuse counselor.  Recommendations: Return to full duty.

000111:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

000112:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

000114:	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 Applicant's established pattern of misconduct, as evidenced by his derogatory Page 11 counselings, three nonjudicial punishments, and a recent summary court martial.  Despite efforts to encourage him toward honorable, productive service, he has responded with further acts of misconduct.  By his actions, he has demonstrated that he has absolutely no potential for further military service.  

000131:	Applicant waived the administrative discharge board.

000131:	SJA review determined the case sufficient in law and fact.

000222:	GCMCA [Commander, 3d Force Service Support Group] 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 000229 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 one summary court-martial, nonjudicial punishment (NJP) on three occasions 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.  Discharge for misconduct takes precedence over separation for medical reasons.  The Applicant’s back injury does not mitigate his misconduct.  An upgrade would be inappropriate.  Relief denied.

The Veterans Administration determines eligibility for post-service benefits, not the NDRB.  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.  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 91, disobeying a lawful order of a non-commissioned officer; Article 92, failure to obey a lawful general order; Article 134, drunk and disorderly and worthless checks.

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