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

ex-PVT, USMC
Docket No. MD05-00445

Applicant’s Request

The application for discharge review was received on 20050107.  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 20050214.  After a thorough review of the available 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: GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: MARCORSEPMAN Par. 6210.2.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated:

1.  	“I am humbly asking each individual on the Naval Council of Personnel Boards to consider the material I am submitting in with this package and to grant my request to upgrade my discharge from General under Honorable Conditions to an Honorable Discharge.  It is with great respect for the United States Marine Corps and for the Marines who support me that I make this request.
I have enclosed several letters from Marines who either worked closely with me or were in my Chain of Command who support my efforts and have gone to considerable lengths to see that a positive outcome of this hearing takes place.  Notably are the letters from my Commanding Officer LtCol M. P. B_, SgtMaj J. B_, and the Officers in charge of Operations LtCol S. C_ and Maj. C_; along with other letters from Marines from both the Enlisted and Officer sides.
I would be the first to admit that my immaturity and unwillingness to seriously understand the gravity of my actions along with the combination of alcohol due not mix.  However much I might wish to use this as a crutch; this would simply not be acceptable to me.  It is with strong pride that I have always taken full responsibility for my actions.  In light of what has happened it is also with great pride to inform the members of this Board that I have taken great strides to improving the way I live and carry on my life not only for me, but for my wife of two years M_, and to be able to contribute a greater good to society as a whole.
This upcoming July I will have been out of the Marine Corps for two years.  During this period I have been leading a very full life.  I have been married now for almost two years to my beautiful wife, whom is currently a Senior Airmen in the United States Air Force.  I have been working at the local commissary bagging groceries during the weekdays, as well as, working for Chugach Housing Maintenance as their technician during the weekends.  
Recently, since attending Cerro Coso Community College on a full time basis since the fall of 2003 I have obtained my Associate’s Degree in Social Science with a 3.82 GPA.  I have enclosed a sealed copy of my transcripts ending in the summer semester of 2004.  After this upcoming semester it appears as though I will have just one more year and I will have earned my Bachelors.  It’s a good thing too.  I am starting to get a few gray hairs from studying so much.
I as well have been active in the community, being accepted and working with the local Lions Club Chapter.  Also I volunteer for the Edwards Youth Program playing an active role in coordinating the 4-H program.  It gives me great joy and happiness to be able to give back to so many young people.
Phaedrus once said, “Everyone is bound to bear patiently the results of his own example”.  I know I probably will never be able to meet any of you personally to show you just how strong and deep my character is or even how grateful I am to the United States Marines in guiding me to become a stronger person.  However, I am just in saying that I have proven to my fellow Marines that this is true.  I have been able to pull my boot strings tight once more and am hopeful that I may be one day able to serve my Country again in the armed services.  On behalf of the Marines who support me and myself, we respectfully request this discharge be amended.

Sincerely,
[signed]
C_ P. A_ (Applicant)”

Documentation

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

Ltr from CO, MAG 46 Det-B dtd 040224
Ltr from C/s, MAG 46 dtd 041201
Ltr from OIC, Peacetime/Wartime Support Team dtd 041122
Ltr from SgtMaj J_ E. B_ dtd 040318
Ltr from GySgt J_ C. K_ dtd 041117
Ltr from GySgt L_ A_ Sr. dtd 040925 (2 pages)
Ltr from Sgt. S. A. H_, undated
Character statement from Maj E_ M. K_ dtd 021125 (3 pages)
Character statement from GySgt K_ F_ O_ dtd 021118 (3 pages)
Character statement from GySgt L_ L. K_ dtd 021121 (3 pages)
Character statement from GySgt G_ W. Y_ dtd 021125 (3 pages)
Character statement from Sgt J_ L. M_ dtd 021121 (3 pages)
Character statement from Sgt J_ R. K_ dtd 021125 (3 pages)
Character statement from Sgt B_ L. K_ dtd 021125 (3 pages)
Character statement from Cpl T_ R. L. H_ undated (3 pages) [unsigned]
Character statement from Cpl L_ W. M_ dtd 021120 (3 pages)
Character statement from Cpl K_ P. G_ dtd 021116 (3 pages)
Character statement from HM3 S_ D_ dtd 021125 (3 pages)
Character statement from LCpl S_ L. W_ dtd 021125 (3 pages)
Transcript from Cerro Coso Community College issued 040907

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)			000328 - 000409	COG

Period of Service Under Review:

Date of Enlistment:  000410		Date of Discharge:  030606

Length of Service (years, months, days):

	Active:    03  01  28
	Inactive:  None

Age at Entry:  20			Years Contracted:  4 

Education Level:  12			AFQT:  59

Highest Rank:  PFC			MOS:  7041

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  NMF*			Conduct:  NMF

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, MM, CoA

Days of Unauthorized Absence:  None

*NMF – No marks found in service record

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority:  MARCORSEPMAN Par. 6210.2.

Chronological Listing of Significant Service Events:

000929:	NJP for violation of UCMJ, Article 86:  UA from appointed place of duty.
Awarded forfeiture of $502.00 per month for 2 months, 30 days restriction and extra duties for 45 days.  Not appealed.

010217: 	Counseled for deficiencies in performance and conduct.  [Violations of Articles 92 and 111.  Reckless operation of a vehicle.  Failure to obey order or regulation by exceeding the speed limit; driving 38 mph faster than the posted speed limit.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

010615:	NJP for violation of UCMJ, Article 111: Driving under the influence of alcohol on or about 2345 on 010610.
Awarded forfeiture of $521.00 per month for 2 months, restriction and extra duties for 45 days.  Forf susp 6 mos. Not appealed.

010910:	Counseled for deficiencies in performance and conduct.  [Failure of Level II Alcohol counseling.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

020812:	Counseled for deficiencies in performance and conduct.  [Violation of Articles 86 and 92.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

020813:	NJP for violation of UCMJ, Article 86:  Absent from appointed place of duty.  Article 92:  Failure to obey order by knowingly and wrongfully possessing 2 bottles of hard liquor in barracks.
Awarded forfeiture of $552.00 per month for 2 months, restriction and extra duties for 60 days, RIR E-1.  Not appealed.

020923:	Applicant notified of intended recommendation for discharge by reason of misconduct due to minor disciplinary infractions.  [Extracted from Detailed Defense Counsel’s letter of 021212.]

021006:	Applicant received Original Notification of Separation Proceedings dtd 020920, Acknowledgement of Rights form and the Purpose and Scope of the Navy Discharge Review Board and Board for Correction of Naval Records form.

021006:	Counseled for deficiencies in performance and conduct.  [Continual disregard for military authority and proper conduct.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

021126:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to minor disciplinary infractions, that the misconduct warranted separation, and recommended a general (under honorable conditions) discharge.

030129:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions.  

030519:	SJA review determined the case sufficient in law and fact.

030520:	GCMCA [Commander, 4th MAW] directed the Applicant's general (under honorable conditions) discharge by reason of misconduct due to minor disciplinary infractions.

[Complete discharge package not contained in service record.]

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was awarded a general (under honorable conditions) discharge on 20030606 by reason of misconduct due to minor disciplinary infractions.  (A and B).  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 (C and D).  The presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package (E).    

Issue 1.  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.  A general 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 three nonjudicial punishment proceedings for violations of Articles 86, 92 and 111 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. Navy and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

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.  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.  After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that his discharge was appropriate and that his evidence of post-service conduct was found not to mitigate the conduct for which he was discharged.  Relief denied.

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.  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 September 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 111, driving under the influence.

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

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

E.  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.

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