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

ex-PFC, USMC
Docket No. MD05-00063

Applicant’s Request

The application for discharge review was received on 20041007.  The Applicant requested the characterization of service received at the time of discharge be changed to general/under honorable conditions.  The Applicant requested a documentary record review.  The Applicant did not list a representative on his DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041229.  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 – Pattern of misconduct (administrative discharge board required but waived), authority: MARCORSEPMAN Par. 6210.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “During my period of time I was active duty.  I never committed any crimes or actions that warranted a court martial.  The issues I had were due to me being young and out of control in an overseas situation in which I drank too much.  I have since raised a family of 13 years and operate my own business.  I would like an opportunity to use my benefits that I am entitled to for my 3 ½ yrs. of service.”

Documentation

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

Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   			None			HON
	Inactive: USMCR (J)		880617 - 890607	COG

Period of Service Under Review:

Date of Enlistment:  890608		Date of Discharge:  921020

Length of Service (years, months, days):

	Active:    03  04  12
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  70

Highest Rank:  LCpl			MOS:  0311 (Rifleman)

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.8 (8)			Conduct:  3.6 (8)

Military Decorations:  LtrApp (3)

Unit/Campaign/Service Awards:  OSR, NDSM

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – Pattern of misconduct (administrative discharge board required but waived), authority:  MARCORSEPMAN Par. 6210.3.

Chronological Listing of Significant Service Events:

880616:	Initial enlistment contract documents admission of pre-service marijuana experimentation.  Enlistment waiver was granted. Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

900514:	NJP for violation of UCMJ, Article 128:  Did … assault … by striking …
Awd red to Pvt, forf of $165.00 per month for 1 month, and 14 days restriction and extra duties.  Red susp for 6 mos.  Not appealed.

900529:	Suspended punishment vacated.

900531:	NJP for violation of UCMJ, Article 92:  … failed to adhere to the limits of his restriction …
Awarded forfeiture of $165.00 per month for 1 month1, and 14 days restriction and extra duties.  Not appealed.

900619:	NJP for violation of UCMJ, Article 112a:  … wrongfully use a controlled substance …
Awarded forfeiture of $362.00 per month for 2 months, and 30 days CCU. Not appealed.

900719:	Retention warning regarding deficiencies, specifically, the illegal use of marijuana/cocaine.  Necessary corrective actions explained.  Sources of assistance identified.  Disciplinary and administrative discharge warnings issued.

900808:	Counseled for deficiencies in performance and conduct.  [Alcohol related incident.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

900926:	Counseled for deficiencies in performance and conduct.  [Three NJP’s and being placed on international legal hold.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

910218:	Applicant assigned to USNH Rota, Spain for level III treatment.

910410:	NJP for violation of UCMJ, Article 111:  Did operate a vehicle while drunk …
Awarded forfeiture of $422.00 per month for 2 months, and 45 days restriction and extra duties.  Forf, rest and extra duties susp for 6 mos.  Not appealed.

920422:	Counseled for deficiencies in performance and conduct.  [Frequent involvement with military/civilian authorities and minor incidents prejudicial to good order and discipline.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

920422:	Counseled for deficiencies in performance and conduct.  [Alcohol related incident.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

920603:	NJP for violation of UCMJ, Article 92 (2 specs):
Specification 1:  Did … fail to obey BO 1700.6G … by consuming alcoholic beverages in … Bachelor quarters.
Specification 2:  Did … fail to obey BO 1700.6G … by consuming alcoholic beverages while under the legal drinking age.
Violation of UCMJ, Article 134:  … wrongfully use and possess a military identification card for the purposes of purchasing alcoholic beverages while under the legal drinking age.   
Awd red to PFC/E-2, and 30 days restriction and extra duties.  Not appealed.

920708:	Medical evaluation for alcohol abuse found the Applicant to be an alcohol abuser, alcohol dependent.

920715:	SACO/DACO eval/comment:  Impression was the Applicant was alcohol dependent (relapse).  He was briefed on his VA benefits as they pertain to his Alcohol treatment.  He was provided with the address of the nearest Veterans Administration Hospital to his Home of Record.

920731:	Applicant stated he does not desire “treatment in conjunction with (his) EAS at the VAH nearest (his) home of record.”

920902:	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 the Applicant’s “five nonjudicial punishments.”

920902:	Applicant advised of 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.

920902:	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 the Applicant’s “five nonjudicial punishments.”  

921005:	SJA review determined the case sufficient in law and fact.

921008:	GCMCA [Commanding General, 2d Marine Division] 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 19921020 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:  Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  No such error or injustice occurred during the Applicant’s enlistment.  While he may feel that his being young and out of control in an overseas situation were contributing factors to his misconduct, they do not mitigate the Applicant’s disobedience of the orders and directives regulating good order and discipline in the United States Marine Corps.  His service record is marred by several negative page eleven counseling entries and the award of nonjudicial punishment (NJP) on five separate occasions for failure to obey orders and regulations; drunk driving; wrongful use of controlled substances; assault; and wrongfully possession and use a military identification card, which substantiated his misconduct.  The record is devoid of any evidence the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  It must be noted that most Marines serve honorably; thereby, earning their honorable discharges.  In fairness to those Marines, commanders and separation authorities are tasked to ensure the undeserving receive no higher a service characterization than is due.  An upgrade to general (under honorable conditions) would be inappropriate.  Relief denied.  

The Veterans Administration determines eligibility for post-service benefits not the Naval Discharge Review Board (NDRB).  There is no requirement or law that grants recharacterization solely on the issue of obtaining Veteran’s benefits.  This issue does not serve as a foundation upon which the Board can grant relief. 

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 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, a drug-free lifestyle, and certification of community service and non-involvement with civil authorities are examples of verifiable proof that can be submitted.   The Board appreciates the Applicant’s efforts to improve his life and encourages him to continue.  At this time, the Applicant has not provided sufficient verifiable documentation of good character and conduct to mitigate his misconduct while on active duty.  Relief is not warranted.
 
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 P1900.16D), effective 27 Jun 89 until 17 Aug 95.

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 order or regulation; Article 111, Drunken or reckless driving; Article 112a, Wrongful use of controlled substances; Article 128, Assault; Article 134, Wrongfully possession and use a military identification card.

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