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

ex-Cpl, USMC
Docket No. MD02-01088

Applicant’s Request

The application for discharge review, received 020725, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed.  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 Veterans of Foreign Wars. 

Decision

A documentary discharge review was conducted in Washington, D.C. on 030602.  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: GENERAL UNDER HONORABLE CONDITIONS/MISCONDUCT, authority: MARCORSEPMAN Par. 6210.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  My discharge was inequitable because one individual (Sr Chief J_ C_), after years of dedicated service, made it a personal quest to end my career.  He accomplished this through some highly questionable ways.  I was attached to AIMD NAS Whidbey Is.  The Charge Sheets he wrote, he submitted, via Marine Laision, to MATSG, by bypassing his chain of command and mine.  He waived AIMD's authority to MATSG, by what authority I do not know I can't find anything in writing.  My OIC at the time was having legal and personal problems of is own, so he was very little help.  My second NJP, which Sr Chief C_ couldn't be present for because he called in and took the day off.  (the point on my NJP).  I was reduced in rank and requested an early discharge.  The Col. Honored my request and upon waiving a board, I took a general discharge.  The only reason I named Sr Chief C_ by name was that at the time of my discharge he still had in his possession a copy of my level 3 medical report marked commanding officer eyes only (O3 or above) in his personal personnel files and I would like them back.

2.  (VFW Issue) We concur with the Applicant contention that his discharge should be upgraded.  Since this is a desert storm veteran, we ask you to consider SECNAVINST 5420.174C PAR 9.3 c(1) (d) in your decision.  We refer this case to the Board for their careful and compassionate consideration and request the Applicant's discharge be reviewed for upgrading his discharge to honorable. 

Documentation

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

Navy Achievement Medal Citation
Fitness Report (2 pages)
Certificates of Commendation (2)
Meritorious Mast Certificate
Letters of Appreciation (2)

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		870616 - 910326	HON
		   USMC		910327 - 950310	HON
	Inactive: USMCR(J)		860623 - 870615	COG

Period of Service Under Review:

Date of Enlistment:  950311		Date of Discharge:  970919

Length of Service (years, months, days):

	Active:    02  05  08
	Inactive:  None

Age at Entry:  26			Years Contracted:  4 

Education Level:  12			AFQT:  68

Highest Rank:  Sgt

Final Enlisted Performance Evaluation Averages (number of marks): The enlisted performance reports were available to the Board for review.

Military Decorations:  NAM

Unit/Campaign/Service Awards:  NUC, GCM(2), NDSM, HSM, SASM(w2*), KLM, KLM(K), SSDR(4), COC(2), MM, LOA(2), COA, Rifle Sharpshooter

Days of Unauthorized Absence:  None

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

GENERAL UNDER HONORABLE CONDITIONS/MISCONDUCT, authority:  MARCORSEPMAN Par. 6210.3.

Chronological Listing of Significant Service Events:

950311:	Reenlisted at MALS-31, MAG-31, 2ND MAW, MCAS Beaufort, SC for 4 years.

950315:	Counseled for deficiencies in performance and conduct (Misconduct and substandard performance; specifically, UA/failing to report to work on time and setting a poor example for his subordinates).  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

960205:	Counseled for deficiencies in performance and conduct (Recent alcohol incident at the Enlisted Club; specifically, the Applicant entered a closed area of the club several times during the evening, after being told not to by the club manager.  Each time the Applicant either had in his possession, or was attempting to attain, pitchers of beer without paying).  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

960221:	Counseled for deficiencies in performance and conduct (UA status from AIMD Marine Training held at 1500 on 960212).  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

960506:	NJP for violation of UCMJ Article 86: UA (AWOL) from 0700 on 960429 to 1010 on 960429.
	Award:  Forfeiture of 1/2 pay per month for 1 month (suspended for 6 months), restriction for 45 days, and reduction to E-4 (suspended for 6 months).  No indication of appeal in the record.

960813:	Applicant admitted to Naval Addictions Rehabilitation and Education Department, Naval Hospital, Camp Pendleton, CA with a diagnosis of alcohol dependence.  The patient was referred to NARED by himself and his command for drinking too much and coming in late for work.

960911:	Applicant enrolled in Aftercare Treatment Plan.

970619:	NJP for violation of UCMJ Article 86: UA (AWOL) from 0700 on 970616 to 1245 on 970616.
Awarded: Restriction for 30 days (suspended for a period of 90 days), extra duties for 30 days, and reduction to E-4.  Not appealed.

970619:	Counseled for deficiencies in performance and conduct (Having received his 2nd NJP and past page 11 entry for Article 86, the Applicant's service indicates a pattern of misconduct.  Additionally, there is a pattern of alcohol related incidents, indicating his failure to control his use of alcohol).  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

970620:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.  Commanding Officer's recommendation for characterization of discharge is general (under honorable conditions).

970627:	Applicant submits a Conditional Waiver Request waiving his right to an administrative discharge board and avoiding a possible other than honorable characterization of service if he is given a general discharge.

970627:	Applicant advised of his rights and having elected to consult with counsel certified under UCMJ Article 27(b), elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.  Applicant's waiver of his right to an administrative discharge board remains subject to the approval of his Conditional Waiver Request. 

Undated:	Commanding Officer, Marine Aviation Training Support Group recommends to separation authority the approval of the Applicant's Conditional Waiver Request.

970730:	Commanding Officer, MATSG recommended to the separation authority the Applicant's discharge with a characterization of general (under honorable conditions) by reason of misconduct due to a pattern of misconduct.  The factual basis for this recommendation was the Applicant's documented deficiencies and violations of the UCMJ, which were prejudicial to good order and discipline during his enlistment.

970822:	SJA review determined the case sufficient in law and fact.

970902:	GCMCA (Commander, Marine Corps Air Base Western Area) directed the Applicant's discharge with a characterization of general (under 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 970919 with a characterization of general (under honorable conditions) for misconduct due to a pattern of misconduct (A).  The Board presumed regularity in the conduct of governmental affairs (B).  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 (C and D).

Issue 1:  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable. A characterization of service of general (under honorable conditions) is warranted when the service member’s conduct constitutes a departure from that expected of a Marine.  The record is void of any evidence to support the Applicant’s claim that Sr. Chief C_ or his command violated his right to due process.  The Applicant’s service record is marred by substandard performance, alcohol related incidents, and award of non-judicial punishment (NJP) on two separate occasions for unauthorized absence.  The Applicant’s summary of service clearly reflects his disobedience of the orders and directives that regulate good order and discipline in the Marine Corps, and demonstrated he was unsuitable for further service. An upgrade to honorable would be inappropriate.  Relief denied.

Issue 2:  The Applicant, through counsel, contends that his service record, to include his participation in Operation Desert Storm, warrants consideration in the upgrading of his characterization of service.  The NDRB recognizes that serving in the Marine Corps is very challenging.  Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country during a time of war.  However, it must be noted that most Marines serve honorably and well and therefore earn honorable discharges.  In fairness to those Marines, commander and separation authorities are tasked to ensure that undeserving Marines receive no higher characterization than is due.  While the NDRB respects the fact that the Applicant participated in Operation Desert Storm, his service is equitably characterized as general (under honorable) conditions.  Relief is not warranted.  However, the NDRB did note an administrative error on the original DD Form 214 and corrected it to reflect the Applicant’s previous eight years of honorable service

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.  However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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.  Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge.  Evidence of continuing educational pursuits, a positive employment record, documentation of community service, certification of non-involvement with civil authorities and credible evidence that the Applicant is living a alcohol free life style, are examples of verifiable documents that should be provided to receive consideration for relief, based on post-service conduct. 

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge.  The Applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  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.  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.  

C.  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.

D.  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