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

ex-Pvt, USMC
Docket No. MD02-01278

Applicant’s Request

The application for discharge review, received 20020906, requested that the characterization of service on the discharge be changed to honorable.  The Applicant requested a documentary record discharge review.  The Applicant listed the American Legion as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20030812.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB.  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.  (Equity Issue)  This former member requests that the Board include provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application.

Documentation

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

Partial statement from the Applicant, undated
Applicant’s DD Form 214 (USMC) (2 copies)
Applicant’s DD Form 214 (USANG) (2 copies)
Letter from Applicant’s sister, undated
Letter from Applicant’s father, undated
Letter from Applicant’s sister, undated
Letter from Applicant’s sister, undated
DD Form 368, Request for conditional release from reserve or guard component, dated December 30, 1999

PART II - SUMMARY OF SERVICE

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

	Active:   USANG		940607 - 940729	HON
	Inactive: None

Period of Service Under Review:

Date of Enlistment:  950620		Date of Discharge:  970912

Length of Service (years, months, days):

	Active:    02  02  23
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  44

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.2 (6)			Conduct:  3.9 (6)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

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:

960227:	Counseled for deficiencies in performance and conduct.  [Violation of MCCDO 1700.7B in regards to alcoholic beverage control and underage drinking.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

960422:	Applicant has been determined to be overweight and directed to meet the following weight reduction goal: 2.5 pounds per month, a realistic goal.  Present weight is 218 with a percent body fat of 21.0.  Weight goal is 203 pounds.  Applicant physical condition does not appear to be pathological disorder.

960801:	Counseled for deficiencies in performance and conduct.  [Unsatisfactory progress while assigned to the Marine Corps weight control program and personal conduct which resulted in semi-annual conduct marks of being 3.9.  On 960422 Applicant weighed in at 218 lbs at 72” in height.  On 960719, Applicant weighed in at 227 lbs at 72” in height.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

961021:	Counseled for deficiencies in performance and conduct.  [Misprison of serious offense.  On 960829 a serious offense (larceny) had been committed against a fellow Marine and Applicant concealed or failed to make it known to proper authorities in a timely manner.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

961122:	Applicant extended on command weight control program.  Applicant reexamined and found to be overweight not due to a pathological disorder.

970321:	NJP for violation of UCMJ, Article 92:
Specification: Violate MCBO 8000.1 by being in possession of a 22- caliber pistol with ammunition on 970318.
Violation of UCMJ, Article 111:
Specification: Apprehended operating a vehicle with a BAC of .09% on 970318.
Violation of UCMJ, Article 134:
Specification: Conceal a 22-caliber pistol under the seat of the vehicle he was driving on 970318.
Awarded forfeiture of $450.00 per month for 2 months, restriction and extra duties for 45 days, reduction to Pvt.  Not appealed.

970403:	Clinical Evaluation: Impression: Alcohol dependence (in relapse), treatment failure.  Prognosis: Poor.  Process for administrative separation.

970505:	Counseled for deficiencies in performance and conduct.  [Driving while under the influence, possession a concealed weapon.  On 970318 Applicant was cited by Quantico Base PMO for operating a vehicle while under the influence of alcohol and a BAC of .09%.  In addition to the first charge he was also cited for concealing a weapon and ammunition within the confines of the same vehicle, which is in violation of MCBO 8000.1.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

970523:	NJP for violation of UCMJ, Article 92 (0 specs):
Specification: Disobey a direct order from Sgt on 970517, to return to the barracks.
Violation of UCMJ, Article 134:
Specification: Involved in a disorderly conduct with LCpl’s dependent wife on 970517.
Awarded forfeiture of $450.00 per month for 2 months, restriction and extra duties for 45 days.  Not appealed.

970529:	Counseled for deficiencies in performance and conduct.  [Weight control failure.  Specifically, failed to comply with the Marine Corps height/weight standards outlined in MCO 6100.10B.  Initially assigned to the weight control program on 960422 weighing in at 218 lbs.  Received a 6105 page 11 for unsatisfactory performance while assigned to the program on 960801 to include several unsat counselings in his weight control folder.  On 961122 he was granted an extension for a period of 6 months for further evaluation and nutritional assistance through the wellness center.  In addition, Applicant failed 3 consecutive PFT’s from 970131 to 970310.  On 970522 his 6 month extension expired with the following weight and measurement results: weight: 242 lbs, waist 42 ¾ in., neck: 17 in., and body fat: 27.4%.  Informed that no further extensions will be granted as per MCO 6100.10B.  
Level III Aftercare failure.  On 970318 cited by Quantico Base PMO for operating a vehicle while under the influence of alcohol and a BAC of .09%.  This incident occurred after completion of Level III for alcohol abuse.  On 970430 diagnosed by a Dr. M_, Naval Medical Clinic, Quantico, as an Aftercare failure and have since then been dropped from the aftercare program.  The most recent incident occurred on 970517 in which he was again in an intoxicated state while attending a section gathering, which led to inappropriate behavior on his part towards a dependent wife other than his own.  This type of irresponsible conduct cannot and will not be tolerated.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

970627:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and Level III aftercare failure.

970630:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and Level III aftercare failure.  The factual basis for this recommendation was repeated violations of the Uniform Code of Military Justice (UCMJ).  Formally counseled for under age drinking of alcoholic beverages, Marine Corps Weight Control Program, and failure to report knowledge of a serious offense (larceny) committed against a fellow Marine.  Continued unsatisfactory conduct resulted in an official Weight Control Failure, Level III Failure, as well as nonjudicial punishment for failure to obey a lawful order and disorderly conduct.  This established pattern of misconduct is prejudicial to good order and discipline and can not be tolerated.  

970701:	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.

970805:	GCMCA [Commanding General, Marine Corps Combat Development Command] directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

970807:	SJA review determined the case sufficient in law and fact.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19970912 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 two occasions, alcohol rehabilitation failure and adverse counseling entries on other occasions.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, falls short of that required for an honorable characterization of service.  While he may feel that his present medical condition was a factor that contributed to his actions, the record clearly reflects his disregard for the requirements of military discipline and demonstrated that he was unfit for further service.  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.  Relief denied.  

The Applicant’s discharge characterization accurately reflects his service to his country.  Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question.  No such error or inequity occurred 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.  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, employment record, documentation of community service, certification of non-involvement with civil authorities and credible evidence of a substance free lifestyle, are examples of verifiable documentation that should have been provided to receive consideration for relief, based on post-service conduct.  The Applicant’s evidence of post-service conduct was found not to mitigate the offense for which he was discharged.  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, disobey a lawful order; Article 111, drunken driving, and Article 134, disorderly conduct.

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