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

 ex-PVT, USMC
Docket No. MD05-00604

Applicant’s Request

The application for discharge review was received on 20050223.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable and the reason for the discharge be changed to “Convenience of Govt”.  The Applicant requests a personal appearance hearing discharge review before the Board in the Washington National Capital Region.  The Applicant listed Veterans of Foreign Wars as his representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.  

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050713.  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 and the reason for discharge shall not change.  The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MARCORSEPMAN Par. 6210.2.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

No issues were submitted by the Applicant.

Issues submitted by Applicant’s representative (VETERANS OF FOREIGN WARS):

"1.  We request that after your review of the Applicants explanation for the incident which led to his separation that you agree he has overcame his problem and that you change the discharge as requested."

Documentation

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

Applicants letter to the Naval Discharge Review Board, dated  February 4, 2005
Applicant’s DD Form 214
Applicant's letter to the Secretary of the Navy Council of Review Boards, dated
    March 23, 2005

PART II - SUMMARY OF SERVICE

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

	Active:   USMC			None
	Inactive: USMCR(J)			990210 - 990215	COG

Period of Service Under Review:

Date of Enlistment:  990216		Date of Discharge:  010306

Length of Service (years, months, days):

	Active:    02  00  21  (Does not exclude lost time)
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  75

Highest Rank:  PFC			MOS:  6017

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.3 (5)			Conduct:  3.9 (5)

Military Decorations:  None

Unit/Campaign/Service Awards:  RSB, SSDR

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. 6210.2.

Chronological Listing of Significant Service Events:

991029:	NJP for violation of UCMJ Article 91 Insubordination:  on 991022, wrongfully disrespect a First Class Petty Officer by spitting on him; violation of UCMJ Article 92 Failure to obey order or regulation: on 991022, wrongfully consume alcoholic beverages while under the age of 21.  Awarded forfeiture of $111.00 pay per month for 2 months, restriction and extra duties for 14 days, reduction to E-1.  Not appealed.

991108:	Counseled for deficiencies in performance and conduct.  On or about 991022, the Applicant violated UCMJ Article 91 Insubordinate conduct towards a First Class Petty Officer by spitting on him and UCMJ Article 92 Disobeying an order/regulation by underage drinking.  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

9911XX:	Substance Abuse Evaluation at Substance Abuse Counseling Center, MCAS Iwakuni, Japan:  a substance abuse evaluation of the Applicant was conducted [specific date not given] with no diagnosis of alcohol dependence but with a recommendation for Applicant to attend Alcohol IMPACT Course.  [Extracted from SACC Supervisor letter of 000518.]

991209:	NJP for violation of UCMJ, Article 92 Disobeying an order/regulation by wrongfully consume alcoholic beverages while under the age of 21 on 991123.  Awarded forfeiture of $111.00 pay per month for 2 months, restriction and extra duties for 14 days.  Not appealed.

9912XX:	Substance Abuse Evaluation at Substance Abuse Counseling Center, MCAS Iwakuni, Japan:  a substance abuse evaluation of the Applicant was conducted [specific date not given] with a diagnosis of alcohol abuse; recommendation was for Applicant to participate in outpatient treatment.  [Extracted from SACC Supervisor letter of 000518.]

000222:	Substance Abuse Evaluation:  Manager, Intervention and Treatment Branch, Substance Abuse Counseling Center, MCAS Iwakuni, Japan advises Commanding Officer, VMFA-212 that, based on a command referral, a substance abuse evaluation of the Applicant was conducted on 000222 with a medical officer diagnosing alcohol dependence on 000225.

000306:	Applicant begins Outpatient (OP) Treatment Program at the Substance Abuse Counseling Center, MCAS Iwakuni, Japan.

000413:	Applicant successfully completes OP Treatment Program.

000913:	NJP for violation of UCMJ, Article 92 Disobeying an order/regulation (MCASO 1746.1V) on or about 000902 by consuming alcohol while underage.  Awarded forfeiture of $502.00 pay per month for 2 months, restriction for 60 days, reduction to E-1.  Not appealed.

010104:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 92.
	Specification: Failure to obey lawful order.  Charge II: violation of the UCMJ, Article 134: Drunk and disorderly.
	Finding:  to Charge I and the specification thereunder, guilty.  To Charge II and the specification thereunder, guilty.
	Sentence:  Confinement for 30 days.
	CA action 010104:  Sentence approved and ordered executed.

010206:	Staff Judge Advocate, Marine Corps Air Station Iwakuni, Japan concluded that the sentence adjudged at the Applicant's Summary Court-Martial of 001114 was legal.

010207:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct due to minor disciplinary infractions.

010207:	Applicant advised of rights and, having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

010207:	Counseled regarding further treatment for alcohol dependency.  Applicant advised that, if treatment is desired, he should contact the Veterans Administration facility nearest his home-of-record once separated from the Marine Corps.  Address and telephone number of that facility is provided to the Applicant.

UNDATED:	Commanding Officer, Marine Fighter Attack Squadron 212 recommended discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions.  The factual basis for this recommendation is the Applicant's page 11 counseling entry and nonjudicial punishments.  [CO's recommendation includes notification letter of 010207 as enclosure (1), establishing that this recommendation was submitted between 010207 and 010210, the latter being the date of SJA review.]

010210:	SJA review determined the case sufficient in law and fact.

010220:	GCMCA (Commanding General, 1st Marine Air Wing, Okinawa, Japan) informs the Commandant of the Marine Corps (MMSB) that he has directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions.  CGMCA further directs the Applicant's transfer to Separations Company, H&S Battalion, Marine Corps Base, Camp Pendleton, CA for discharge.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20010306 under other than honorable conditions for misconduct due to minor disciplinary infractions (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:  The Applicant's representative contends that the Applicant has overcome the problems he faced during his enlistment and, therefore, deserves an upgrade to his characterization of service.  The Applicant is advised that 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 Marine Corps.  However, the NDRB is authorized to consider post-service factors in the recharacteriza-tion 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 a substance-free lifestyle and certification of non-involvement with civil authorities.  As of this time, the Applicant has not provided any documentation of a post-service nature for the Board to consider.  Relief on this basis is denied.

Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no impropriety after a review of Applicant’s case.  The record shows that the Applicant:
o	was convicted at nonjudicial punishment (NJP) proceedings on 19991029, 19991209, and 20000913 for violations of Articles 91 (Insubordination) and 92 (Failure to obey order or regulation) (3 total specifications) of the UCMJ;
o	was convicted at a summary court-martial on 20010104 for violations of Articles 92 (Failure to obey order or regulation) and 134 (Drunk and disorderly) of the UCMJ;
o	was issued a discharge warning on 19991108 for deficiencies in performance and conduct;
o	was properly notified on 20010207 of intended recommendation for administra-tive separation and, on that same date, waived his right to be heard before an administrative discharge board.
Marine Corps regulations provide that separation processing may be initiated when there is a documented series of at least three minor disciplinary infractions during the current enlistment, and when the Applicant has previously been issued a discharge warning.
Additionally, the Applicant is advised that upgrading his characterization would not be possible even if an impropriety had been discovered as his cumulative conduct marking falls below the 4.0 necessary for an honorable characterization.

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 P1900.16E), effective 31 Jan 97 until 31 Aug 2001. 

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.

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