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

ex-Pvt, USMC
Docket No. MD05-00108

Applicant’s Request

The application for discharge review was received on 20031202.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests 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 20041112.  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 believe I have proven to be a positive citizen and have advanced in our society.  I have a good job and a wife and a son.”

Documentation

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

None

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		000508 - 000611	COG

Period of Service Under Review:

Date of Enlistment:  000612		Date of Discharge:  020809

Length of Service (years, months, days):

	Active:    02  01  28
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  41

Highest Rank:  LCpl			MOS:  0341

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.7 (7)			Conduct:  3.6 (7)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR, REB (2)

Days of Unauthorized Absence:  2

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:

010126:	NJP for violation of UCMJ, Article 92:
Specification: Wrongfully disobey a lawful Marine Corps Order, MCO P1700.22d by consuming alcohol under the legal drinking age.
Awarded forfeiture of $243.00 per month for 1 month, restriction and extra duties for 7 days.  Forfeiture suspended for 6 months.  Not appealed.

010214:	Civilian action pending.  [Extracted from medical record, dated 010215.]

010215:	Addiction consult: Provisional diagnosis: Alcohol abuse.

010424:	Counseled for deficiencies in performance and conduct.  [On or about 010420 at 0600 you displayed extremely poor judgment and decision-making regarding areas that you have been previously counseled or lectured on.  While as a passenger in PFC _G’s POV you neglected to inform the driver that driving a long distance after a major exercise is not advisable.  Sleep deprivation was the major cause for this accident, which you failed to stay awake as a A-Driver.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

020115:	NJP for violation of UCMJ, Article 92 (3 specs):
Specification 1: Wrongfully disobey a lawful Marine Corps Bases Japan Order, MARCORPBASESJAPNO 1600.1B by possessing an consuming alcohol while being under the legal drinking age of 21.
Specification 2: Wrongfully disobeying Battalion Bulletin, BaBul 1050 (6.b.2), by failing to logout on liberty in the company logbook on 2100, 011230.
Specification 3: Wrongfully disobey Battalion Bulletin BnBul 1050(6.b3.), by separating from his liberty partner on 2100, 011230.
Violation of UCMJ, Article 86:
Specification: Absent from appointed place of duty on 0730, 020102-1930, 020104 (2 days)
Violation of UCMJ, Article 134:
Specification: Drunk and disorderly on 2100, 011230, to wit: kicked out window at McDonald’s restaurant.
Awarded forfeiture of $619.00 per month for 2 months, restriction and extra duties for 45 days, reduction to E-2.  Forfeiture suspended for 2 months.  Not appealed.

020301:	Psychiatrist evaluation: Provisional diagnosis: Alcohol abuse.  Recommendation: IOP.  Recommend processing for separation IAW MC instruction for aftercare failure.

020503:	NJP for violation of UCMJ, Article 92:
Specification: Wrongfully disobey a lawful Marine Corps Order, MCO 1700.22d, by drinking alcohol under the legal drinking age on 2200, 020427.
Violation of UCMJ, Article 111:
Specification: Physically controlled a vehicle to wit: a passenger car, while impaired by alcohol with a alcohol concentration in his breath of .108 grams of alcohol per 210 liters of breath on 2200, 020427.
Awarded forfeiture of $552.00 per month for 2 months, restriction and extra duties for 45 days, reduction to E-1.  Not appealed.

020521:	Separation Physical: Applicant involved in car accident 010420.  DX: concussion.  Applicant attended consolidated substance abuse counseling center April 2000.  Applicant completed treatment.  Applicant failed treatment.  Only one page of physical found in service/medical record.

020610:	NJP for violation of UCMJ, Article 92:
Specification: Fail to obey a lawful Marine Corps Order, to wit: MCO 1700.22D, by wrongfully drinking alcohol under the legal drinking age.
Violation of UCMJ, Article 134:
Specification: Break restriction on 020525, to wit: was at Tropicana Bar and Grill.
Awarded forfeiture of $511.00 per month for 2 months, restriction and extra duties for 45 days.  Not appealed.

020709:	Applicant to pre-trial confinement.

020712:	SJA review determined the case sufficient in law and fact.

020713:	GCMCA, CG, 1st Marine Division (Rein), directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

020718:	CG, 1st Marine Division (Rein), request that the Applicant be permanently barred from Camp Pendleton.

Parts of Applicant’s discharge package missing from service record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20020809 under other than honorable conditions by reason of misconduct due to a pattern of misconduct (A).  After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (B and C).  The presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package (D and E).    

Issue 1.   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 naval service.  The NDRB is authorized, however, to consider 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.  Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of alcohol treatment and rehabilitation, and certification of non-involvement with civil authorities.  As of this time, the Applicant has not provided any documentation for the Board to consider.  Relief denied.

When the service of a member of the U.S. Marine Corps has been honest and faithful, it is appropriate to characterize that service as honorable.  An Under Other Than Honorable Conditions discharge is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record.  The Applicant’s service was marred by 4 nonjudicial punishment proceedings for violations of Articles 86, 92 (6 Specifications), and 134 (2 Specifications) of the UCMJ.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Marine Corps and falls far short of that required for an upgrade of his characterization of service.  

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 documentation to support any claims of post-service accomplishments or any other evidence related to his discharge 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 P1900.16F), effective 01 Sep 2001 until Present. 

B.  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.

C.  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

D.  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 an order, regulation..

E.  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.  

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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