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

ex-Pvt, USMC
Docket No. MD05-00036

Applicant’s Request

The application for discharge review was received on 20040929.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance hearing before the Board in St. Louis, MO.  In the acceptance letter, the Applicant was advised that all hearings are held in Washington, D.C. and that the Board first conducts a documentary review prior to any personal appearance hearing.  The Applicant listed the Disabled American Veterans as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050228.  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 stated

Applicant’s issues, as stated on the application:

1.  “I am a Iraqi War Veteran and a patriot.  I served my country faithfully and diligently I earned my medical, educational, and other veteran’s benefits.  Life is not black and white, there is a grey area.”

Additional issues submitted by Applicant’s counsel/representative (DISABLED AMERICAN VETERANS):

2.  “After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of evidence assembled for review, we continue to note the contention of the appellant in his request for a discharge upgrade of his current Other Than Honorable discharge to an Honorable.

The FSM served on active service from February 21, 2001 to January 23, 2004 at which time he was discharged due to reasons of Misconduct. 

The FSM ask that consideration be given to equitable relief, as this is a matter that involves a determination whether a discharge should be changed under the equity standards, to include any issue upon which the applicant submits to the Board’s discretionary authority, under SECNAVIST 5420.174D.

Under the premises of equitable relief, we believe the Board can change the character of discharge to a General, Under Honorable Conditions. As noted by the applicant, the circumstances surrounding the current discharge came from poor judgment, especially in the refusal of treatment, and given the same circumstances it would not happen again, as he has a desire to improve the potential quality of life for his family through a change of the current discharge.

We ask for the Board’s careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision.  These issues do not supersede any issues previously submitted by the applicant.”

Documentation

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

Applicant’s DD Form 214 and Form 215
Letter from Applicant, undated (3 pp.)
Letter of recommendation from B_ G_ E_, undated (2 pp.)
Letter of recommendation from G_ W_, dated July 24, 2004
Letter of recommendation from S_ F. L_, undated
Letter of recommendation from C_ D_, undated
Letter of recommendation from M_ R. M_, dated August 17, 2004
Letter of recommendation from R_ G_, dated August 22, 2004
Letter of recommendation from P_ W. A_, III, undated (3 pp.)
Letter from Applicant to parents, dated 22 March, 2003 (2 pp.)
Six photographs

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		001221 - 010220	COG
		   USMCR(J)		980618 – Unknown	Unknown

Period of Service Under Review:

Date of Enlistment:  010221		Date of Discharge:  040123

Length of Service (years, months, days):

	Active:    02  11  03  (Does not exclude lost time)
	Inactive:  None

Age at Entry:  21			Years Contracted:  4

Education Level:  12			AFQT:  52

Highest Rank:  LCpl			MOS:  0311

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.2 (8)			Conduct:  3.1 (8)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, PUC, RSB

Days of Unauthorized Absence:  15

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:

020522:	NJP for violation of UCMJ, Article 91: Disrespectful to the Duty NCO and another NCO on 020514; violation of UCMJ, Article 92: Violated order of his Platoon Sergeant by wrongfully drinking alcohol.
Awarded forfeiture of $289.00 (suspended for 6 months), restriction and extra duties for 14 days.  Not appealed.

020523:	Counseled for deficiencies in performance and conduct.  [Disrespectful language toward 2 NCOs, and consuming alcohol when ordered not to.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

020611:	Counseled for deficiencies in performance and conduct.  [Vacation of suspension from NJP dated 020522.].

020614:	NJP for violation of UCMJ, Article 92: Disobeyed lawful written order by drinking alcohol while on restriction.
Awarded forfeiture of $289.00, restriction and extra duties for 14 days.  Not appealed.

020617:	Counseled for deficiencies in performance and conduct.  [Purchasing and consuming alcohol while on restriction.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

020726:	NJP for violation of UCMJ, Article 86: UA from 0700, 020701 to 0700, 020716.
Awarded forfeiture of $619.00 per month for 2 months, restriction (period not found), reduction to PFC.  Not appealed.

020726:	Counseled for deficiencies in performance and conduct.  [UA from assigned Level III alcohol treatment from 020701 to 020716.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

021209:	NJP for violation of UCMJ, Article 92: Violated BnO 11103.2 by possessing and consuming alcohol in the BEQ; violation of UCMJ, Article 134: Drunk and incapacitated for duty.
Awarded forfeiture of $552.00 per month for 2 months, restriction and extra duties for 45 days, reduction to Pvt (forfeiture, restriction and extra duties suspended for 6 months).  Not appealed.

Undated: 	Counseled for deficiencies in performance and conduct.  [Disobeyed order to be at 0700 formation on many occasions.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

030801:	Battalion Surgeon diagnosed Applicant to possess a personality disorder, with mood and outlook secondary to his alcohol abuse and dependence.

031012:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by four NJPs and failure to complete alcohol rehabilitation treatment.  Applicant was terminated from a four week outpatient treatment for substance abuse due to his poor participation and unauthorized absences.

031014:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.  

031031:	Company Commander reports that Applicant completed Level III alcohol treatment but failed the aftercare program.  Applicant rejected a second opportunity to attend a Level III program.

031113:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

031205:	Counseled for deficiencies in performance and conduct.  [Failed to obey order and UA from post as ADNCO on 031122.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

031211:	SJA review determined the case sufficient in law and fact.

031223:	GCMCA [CG, 1st MARDIV (Rein)] 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 20040123 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).

Issues 1 and 2.  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 four occasions for unauthorized absence, three instances of disobedience of orders, disrespect to NCOs, and being drunk and incapacitated for duty.  The Applicant also failed to complete alcohol rehabilitation treatment.  Finally, the Applicant’s conduct evaluation average falls short of that required for an honorable characterization of service.  While he may feel that his alcohol problem 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 evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  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.  Normally, to permit relief, an inequity or impropriety must have existed during the period of enlistment in question.  No such inequity or impropriety 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, to enhance employment opportunities, or for 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 may be provided to receive consideration for relief, based on post-service conduct.  The Applicant’s evidence of post-service conduct was found not to mitigate his misconduct sufficient to warrant an upgrade to his discharge.  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 P1900.16F), effective 01 Sep 2001 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 86, unauthorized absence; Article 91, disrespect to an NCO; Article 92, disobey a lawful order; and Article 134, drunk and incapacitated for duty.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

D  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

E.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

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 “http://Boards.law.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:

		Secretary of the Navy Council of Review Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023