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

FOR OFFICIAL USE ONLY

 ex-PVT, USMC
Docket No. MD05-01065

Applicant’s Request

The application for discharge review was received on 20050609.  The Applicant requests the Discharge 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 designated a VA Service Officer as the 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 20060112.  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 by reason of misconduct due to a pattern of misconduct.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“Post service conduct –upgrade based upon letters of reference and my personal appearance before the board.”

Additional issues submitted by Applicant’s counsel/representative (Veterans Service Office): Upgrade discharge from other than honorable to honorable.  Post Service Conduct! 

Documentation

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

Applicant’s DD Form 214
Letter of Recommendation from C_ J. P_, dtd November 13, 2001
Letter of Recommendation from S_ T. F_, undated
Letter of Endorsement from L_ F. E_, dtd November 14, 2001
Letter from S_ N_, M.D. Franklin Medical Group, dtd March 23, 2005
Cover letter from P_ M. D_, Veterans Service Officer, State of Connecticut Department of Veterans Affairs Office of Advocacy & Assistance dtd February 25, 2004

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	19950620 – 19950702		COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19950703		Date of Discharge:  19970825

Length of Service (years, months, days):

Active:    02  01  17  (Excludes lost time)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  6 days
	Confinement:		  none

Age at Entry:  24

Years Contracted:  4 

Education Level:  09(1 semester of college)				AFQT:  37

Highest Rank:  LCpl				MOS:  0311

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.3 (6) 			Conduct:  3.2 (6) 

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  Rifle Expert Badge (2), National Defense Service Medal, Armed Forces Expeditionary Medal, Sea Service Deployment Ribbon.

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:

960725:	Applicant arrested by California Highway Patrol for driving under the influence and speeding in excess of 100 miles per hour on or about this date.  [Extracted from platoon sergeant’s letter regarding Applicant’s misconduct.]

961016:	NJP for violation of UCMJ, Article 86:  In that LCpl T_, did, on or about 0700, 960919, without authority, fail to go to his appointed place of duty, to wit: D Co, 1st LAR, morning formation.  LCpl T_ did remain so absent until on or about 1100, 960919, when he returned to his unit.
	Award:  Forfeiture of $237 per month for 1 month, restriction and extra duty for 14 days.  Forfeiture of $237 pay per month for 1 month is hereby suspended for 3 months, at which time unless sooner vacated, the suspended portion will be remitted without further action.  Not appealed.

961113:	Forfeiture of pay awarded at NJP on 961016 vacated due to continued misconduct.

961114:	NJP for violation of UCMJ, Article 92:  In that LCpl T_, having knowledge of a lawful order issued by the Commanding Officer, 11th MEU that each Marine must have liberty buddy while on liberty, an order which it was his duty to obey, did, while on liberty in Singapore, fail to obey the same.
	Award:  Forfeiture of $490 per month for 1 month, reduction to E-2.  Reduction and forfeiture suspended for 6 months.  Not appealed.

961119:	Acknowledged understanding of eligibility but not recommended for promotion to Cpl for the month of Nov 96 Prom 1st Quarter because of recent NJP on 961016.  Applicant chose not to make a statement.

970123:	Acknowledged understanding of eligibility but not recommended for promotion to Cpl for the month of Feb 97 Prom 2nd Quarter because of recent NJP on 961114.  Applicant chose not to make a statement.

970311:	Acknowledged understanding of eligibility but not recommended for promotion to Cpl for the month of Apr 97 Prom period because of BN NJP dated 961114.  Applicant chose not to make a statement.

970312:	NJP imposed and suspended on 961114 is vacated due to continued misconduct.

970328:	Counseling:  Advised of deficiencies in performance and conduct (Misconduct as evident by recent office hours.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

970331:	NJP for violation of UCMJ, Article 86:  In that PFC T_, did, at Sydney, Australia, on or about 2359, 970303, without authority absent himself from his appointed place of duty, to wit: USS Essex (LHD-2) in port at Sydney, Australia, and did remain so absent until on or about 1710, 970305.
Violation of UCMJ Article 92: In that PFC T_, having knowledge of a written order issued by the Commanding Officer of the 11TH MEU, to wit all Marines must be with a buddy at all times while on liberty, an order which it was his duty to obey, did, on or about 2350, 970303, at Sydney, Australia, willfully disobey the same by willfully separating himself from his liberty buddy, LCpl B_.
	Award:  Forfeiture of $450 per month for 1 month, restriction for 30 days, reduction to E-1.  Reduction suspended for six months.  Not appealed.

970401:	Counseling:  Advised of deficiencies in performance and conduct (Misconduct as evident by recent office hours.), necessary corrective actions explained and sources of assistance provided.  Advised being recommended for administrative separation.

970428:	Naval Hospital, Camp Pendleton, CA, Psychiatry Department:
	AXIS I:  	1.  Adjustment Disorder (NOS)
2.	Alcohol Dependence
AXIS II: 	Antisocial, passive aggressive personality traits
AXIS III:	None known
Found fit for duty.

970529:	Applicant to unauthorized absence at 0600 on 970529.

970604:	Applicant from unauthorized absence at 1230 on 970604.

970604:	NJP imposed and suspended on 970331 is hereby vacated due to continued misconduct.

970606:	NJP for violation of UCMJ, Article 86 (2 Specs):  Spec 1: Did, at CamPen, from on or about 0500, 970522 until 0655, 970522, without authority, absent himself from his appointed place of duty, that being the Co D area for an inspection; Spec 2: Did, on or about 970529, without authority, absent himself from his unit, to wit: D Co 1st Light Armored Reconnaissance Battalion, and did remain so absent until on or about 1230, 970604.
	Award:  Reduction to E-1, restriction and extra duties for 45 days.  Not appealed.

970607:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights 
970707:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of pattern of misconduct.  The factual basis for this recommendation was four instances of nonjudicial punishment, one of which included the charge of being in an unauthorized absence status from 970529 until 970604.  

970707:	Commanding Officer, 1st Light Armored Reconnaissance Battalion, 1st Marine Division recommended Applicant’s discharge under other than honorable conditions by reason of pattern of misconduct.

970807:	SJA review determined the case sufficient in law and fact.

970811:	GCMCA, Commander, 1st 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 19970825 by reason of misconduct due to a pattern of misconduct (A and B) with a service characterization of under other than honorable conditions.  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 (C and D).  

When a Marine’s service 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 four nonjudicial punishment proceedings for violations of Articles 86 and 92 of the UCMJ.  The Applicant was also arrested by civil authorities for driving in excess of 100 miles per hour while under the influence of alcohol.  The Applicant’s violations of Article 92 are serious offenses.  The Applicant’s arrest for driving under the influence is the equivalent to a violation of Article 111 of the UCMJ, also a serious offense.  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.

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.  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 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.  While the Board applauds the Applicant’s volunteer efforts, his efforts to document post-service accomplishments need to be more comprehensive.  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 sufficient post-service documentation for the Board to consider.  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 P1900.16E), effective 31 Jan 97 until 31 Aug 01. 

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, disobey a lawful order or 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.

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