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

 ex-PVT, USMC
Docket No. MD05-00732

Applicant’s Request

The application for discharge review was received on 20050321.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance hearing discharge review before the Board in the Washington National Capital Region.  The Applicant did not list any 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 20050727.  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:

“My name is M___ S. P___ I respectfully request to appear in front of a board to have my discharged to be changed to an Honorable Discharged.  My last year in the Marine Corps my command was trying to kick me out.  I went to trial in Dec 2003 but they could not come up with a verdict so my case was left up to the general of 4TH Maw.  The last week in Feb 2004, I was involved in a hit in run while on liberty it was determined that it was in the line of duty.  My right leg was broken I was left with a rod and three screws in my leg.  My EAS was April 25, 2004.  When I came back to work it was April 5 2004.  When I returned to back to duty, I was on crutches.  The General responded on March 31, 2004 saying as long as I did not get in to any trouble from the time he wrote the letter until my EAS I would receive an Honorable Discharge.  My command did not know I had a copy of the letter because I worked admin I saw the letter come threw the fax.  My CO did not inform me about the letter.  The CO went back to the General and ask the General if he would change his decision.  I had 25 days of leave that would have allowed me to get out on April 1, 2004.  5 days after the first letter was sent to command another letter was came down from the General saying I had to get out with a dishonorable discharge.  I was on a 4 day leave when I got back he told me that I had to 1630 to have everything pack out of my room and be checked out of the command.  When I went to check out of medical the Navy DR cleared me while I was still on crutches because he was good friends with my CO.  I went to let my DR know who was LTCOL in the USAF he could not believe I was cleared he had me come see him 3 months after I got out because the injury was that serious. I did not have any way to get home because the leg that I drove with was broke.  Thank you for taking the time out to read my story.”

Documentation

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

Applicant’s DD Form 214 (2)
Cancelled Notification of Discharge dtd April 3, 2004 (3)
Cancelled Commanding General Recommendation dtd Mach 31, 2004 (2)
Commanding General Recommendation dtd April 5, 2004 (2)
Cover Letter from Mecklenburg County Veteran Services Department dtd March 7, 2005
Letter from Applicant (2)
Notification of Discharge dtd April 7, 2004 

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		000420 - 000425	COG

Period of Service Under Review:

Date of Enlistment:  000426		Date of Discharge:  040415

Length of Service (years, months, days):

	Active:    03  11  20
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 

Education Level:  12			AFQT:  41

Highest Rank:  LCpl			MOS:  0121

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.9 (8)			Conduct:  3.9 (8)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR, NUC

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. 6210.3.

Chronological Listing of Significant Service Events:

001130:	Counseled for deficiencies in performance and conduct.  [Specifically, my violation of Marine Corps regulations/Federal/State statues for my involvement with civilian authorities over my alleged alcohol involvement on 001123 by drinking alcohol underage and driving. Advised that behavior was dangerous, brought discredit to the U.S. Marine Corps, and was prejudicial to good order and discipline]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

010905:	Counseled for deficiencies in performance and conduct.  [Violation of a lawful order, specifically on or about 2100, on 010718, at Camp Kinser, Okinawa, Japan, willfully violated a lawful order to wit: BnO 11100.1A, by smoking in the BEQ.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

020621:	Counseled for deficiencies in performance and conduct.  [Specifically, your lack of maturity, initiative, dependability and poor judgment.  These deficiencies are evidenced by the numerous counseling sessions between you and your NCOIC AND SNCOIC regarding you unauthorized absence from your appointed place of duty on several occasions.  Most recently, when failed to report to work between the hours of 0830 to 0900 on 15 June 2002.  The personal behavior is incompatible with the standards governing good order and discipline, and will not be condoned or tolerated from you in the future.  You are hereby informed, that future problems as previously identified will be dealt with swiftly and severely.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

020923:	Counseled for deficiencies in performance and conduct.  [Repeated violation of IAW AAFBI 31-205 aboard Andrews AFB: Speeding Ticket on 0208054 and 020827.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

020923:	Not recommended for promotion to Corporal for the month of October 2002 due repeated violations of IAW AAFBI 31-205 aboard Andrews AFB.

021012:	Involved in motor vehicle accident as the driver, extensive head injury requiring plastic surgery. Intoxicated.  Found not in the line of duty.  [Extracted from Timeline Chronology Listing, (Government Exhibit 9) and DD Form 2807-1 dated 040407].

021017:	Command Investigation initiated for LOD/Misconduct determination. [Extracted from Timeline Chronology Listing].

021212:	Not recommended for promotion for the months of November and December 2002 due to poor performance and failure to comply to basic rules and regulations governed by the UCMJ.  In addition to the numerous counseling’s which identified your substandard performance, lack of maturity, judgment and leadership qualities.

021212:	Counseled for deficiencies in performance and conduct.  [Violation of Article 86: Absence without leave, in that the Marine was absent from his appointed place of duty on 7 Sep between 0700 to approximately 0840 and 8 September 02 from 0700 to 0707.  Violation of Article 92 Failure to obey order or regulation in that the Marine disobeyed a lawful order to be in proper uniform and go to for his assigned burial detail on 7 Sep 02 at 0900.  Article 134:  General article; Incapacitation concerning performance of duties through admittance of alcohol consumption night prior to detail…]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

021212:	Not recommended for promotion to Corporal for the month of January 2003 due to your NJP on December 12, 2002.
 
021212:	NJP for violation of UCMJ, Article 86: Absence without leave, violation of UCMJ, Article 92: Failure to obey order or regulation, violation of UCMJ, Article 134: General Article, incapacitated, hindering performance of duties.
Awarded restriction for 30 days, reduction to E-2.  Not appealed.

030115:	Applicant diagnosed alcohol dependant.  Recommend Intensive Outpatient treatment.

030309:	IO completes command investigation. [Extracted from Timeline Chronology Listing].

030401:	Counseled for deficiencies in performance and conduct.  [Your assignment to the Substance Abuse Counseling Program 31 December 02 as a result of previous alcohol related incident.  You attended your first class with the program on 27 March 03.  Your success within this program will be based upon your participation.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

030428:	NJP for violation of UCMJ, Article 111: Drunken operation of vehicle, on 12 October 2002.
Awarded reduction to E-1.  Appealed 030505.  Appeal denied 050528

030709:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service under other than honorable conditions by reason of misconduct due to a pattern of misconduct [not signed].

030714:	SNM acknowledges processing and requests a board [Extracted from Timeline Chronology Listing].

030729:	Counseled for deficiencies in performance and conduct.  [Being late on numerous occasions in the recent period, specifically for squadron PT on 030728, and disobeying a lawful order to be at his prescribed place of duty.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

030815:	Final action on LOD investigation: Found not to be in the line of duty and due to own misconduct.  USMC decided not to recoup financial costs or time from SNM.

030822:	Commanding Officer request services from Quantico OSJA to hold board. [Extracted from Timeline Chronology Listing].
  
030925:	Command indicates that SNM currently on leave until 4 October and that any pending surgeries are cosmetic only [Extracted from Timeline Chronology Listing].

030930:	Due to DC’s court schedule, board scheduled for 5 November [Extracted from Timeline Chronology Listing].

031104:	Command puts board on hold. [Extracted from Timeline Chronology Listing].
 
031121:	Board rescheduled for 9 December [Extracted from Timeline Chronology Listing].

031206:	Applicant stabbed in bar while intoxicated.  [Extracted from DD Form 2807-1 dated 040407].

040322:	Commanding Officer, MFAS-321 recommended the Applicant’s under other than honorable conditions discharge by reason of misconduct due to pattern of misconduct.  [unsigned]

040331:	Commanding General, Headquarters, 4th MAW directed the Applicant’s under other than honorable conditions discharge by reason of misconduct due to commission of a serious offense suspended for one month.  Document is unsigned and noted “canceled.”  [Document provided by Applicant and not contained in service record.]

040331:	4TH MAW Adjutant, HQS, 4TH MAW Memorandum of Review:  “SJA Comments:  Reviewed Package.  Found Sufficient in Law and Fact.  Note:  Board rec susp disch, both Sqdn and Grp Cos have recom override of this recom.  This decision at CA’s discretion.  Note:  Corrective action dated 4/5/04 reflects commanding general’s intent, expressed on 3/30/04 to order separation of this Marine.  Technical difficulties with system prevented completion of steps in system.”  [Unsigned]

040403:	Commanding Officer, MAG 49 Det A informed the Applicant his discharge was directed on 040331 but suspended for one month.  Document is unsigned and noted “canceled.”  [Document provided by Applicant and not contained in service record.]

040405:	Commanding General, Headquarters 4th MAW directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

040407:	Applicant found fit for separation.

040415:	Counseled for deficiencies in performance and conduct.  [Violation of Articles 86 and 92 of the UCMJ.  Pvt P_ (Applicant) was authorized to take leave in order to take care of personal affairs due to his administrative separation… He was UA and failed to obey an order from the Commanding Officer, MAG-49 Det-A to return off of leave at 0730, 13 April…]  Necessary corrective actions explained, sources of assistance provided.

*Complete discharge package not contained in service record

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20040415 under other than honorable conditions for misconduct due to a pattern of misconduct (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).    

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 seven retention warnings and two nonjudicial punishment proceedings for violations of Articles 86, 92 and 111 of the UCMJ.  The Applicant also had violations of Articles 86, 92 and 111 that were not adjudicated, including drinking alcohol and driving while underage and speeding tickets aboard Andrews Air Force Base.  A line of duty investigation found the Applicant’s motor vehicle accident on 200201212 was not in the line of duty and a result of his misconduct, namely, the drunken operation of a motor vehicle.   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 Marine Corps and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

The Applicant contends that his discharge was suspended and provides as evidence: Two unsigned documents marked “canceled.”  On 200403031, the Adjutant, 4th MAW, noted the Commanding General’s original intent was to separate the Applicant under other than honorable conditions by reason of misconduct due to a pattern of misconduct without suspension.  Therefore, the Board found that the Applicant’s discharge was never directed and suspended on 20040331 but properly directed without suspension on 20040405.  Relief denied. 

The Applicant contends that he was in a “hit and run while on liberty and it was determined that it was in the line of duty” and that a “LTCOL in the USAF… could not believe I was cleared” for discharge.  However, the record clearly documents that the Applicant was found fit for separation on 20040407 by competent medical authority.  Further,  SECNAVINST 1850.4 E stipulates that separations for misconduct take precedence over dischargers based on medical disability.  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 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 111, drunken driving.

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