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

FOR OFFICIAL USE ONLY

 ex-PVT, USMC
Docket No. MD05-01422

Applicant’s Request

The application for discharge review was received on 20050823.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions).  The Applicant requests a documentary record discharge review.  The Applicant designated American Legion as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050525.  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 the commission of a serious offense.

 PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application to the Board:

“I do believe that my actions warranted the discharge that I received.  It was my choice to start drinking underage, and from that decision came many of the problems that scarred my service.  I did not take my military career seriously.  As this was my first experience away from home, I took advantage of this opportunity to explore my freedom, instead of assuming the responsibility to serve my country honorably.  Now at 27 I realize the importance and honor of being a United States Marine, unfortunately it is too late to fulfill my duty to this country.  I stopped drinking 4 years ago, have been married for 3 years, and have a two year old son.  I am 4 years into a career in the heating and air conditioning industry.  My goal for the future is to provide for my family.  I now realize the mistakes I made in the past and assume full responsibility for my actions.  I sincerely believe that had I entered the military at a later time, giving myself the chance to mature, I would not have made these mistakes, and would still be proudly serving my country today.  I appreciate your consideration of the upgrade of my discharge.”

Documentation

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

Applicant’s DD Form 214  (Copy 4)
Applicant’s employee profile  (2 pages)
Oakton Community College transcript, Fall 2002
Ltr from Educational Foundation, R_ T_, Director, Training and testing, dtd April 30, 2002
Ltr from North American Technician Excellence, R_ P. B_, President, dtd December 8, 2003  (Service Technician for Air Conditioning)
Ltr from North American Technician Excellence, R_ P. B_, President, dtd December 8, 2003  (Service Technician for Gas Furnaces)
Oakton Community College transcript, Spring 2003

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	19951023 – 19960326		COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19960327		Date of Discharge:  19970521

Length of Service (years, months, days):

Active:    01  01  25  (Does not include lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  1 day
	Confinement:		  34 days

Age at Entry:  18 

Years Contracted:  4 

Education Level:  (GED)			AFQT:  82

Highest Rank:  PVT				MOS:  2800

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.0 (3) 				Conduct:  3.2 (3)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  Rifle Marksman Badge

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  MARCORSEPMAN Par. 6210.6.

Chronological Listing of Significant Service Events:

961029:	NJP for violation of UCMJ, Article 86:  Unauthorized absence.
	Specification: UA from appt of duty, to wit; 1615 practical exam on 960916.
Violation of UCMJ, Article 92:
	Specification 1: On or about 1700, 960916, SNM did violate Sco10 1700.4C, to wit; by drinking alcohol under the legal age to do so. Specification 2: On or about 1700, 960916, SNM did violate Sco10 1700.4C, to wit; by drinking during working hours.
Violation of UCMJ, Article 111: At MCAGCC, SNM did drive under the influence of alcohol on or about 2200, 960924.  BAC of .11%.
Violation of UCMJ, Article 92: On or about 2200, 960924, SNM did violate Sco10 1700.4C, to wit; by drinking alcohol under the legal age to do so.
	Award:  Forfeiture of $437.00 pay per month for 2 months (1 month suspended for 6 months), restriction and extra duty for 30 days.  Not appealed.

961112:	Applicant to unauthorized absence at 0600 on 961112.

961113:	Applicant from unauthorized absence at 1225 on 961113 
(1 day/apprehended).

961218:	Counseling:  Advised of deficiencies in performance and conduct (Failure to conform to Marine Corps standards, specifically my recent NJP for violations of Articles 86, and 92 of the UCJM.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

961219:	Special Court Martial:
	Charge I: violation of the UCMJ, Article 86:
	Specification: On or about 12Nov96, without authority, absent himself from his unit and did remain so absent until on or about 13Nove96.
	Charge II:  violation of the UCMJ, Article 92:
	Specification 1: On or about 08Nov96, having knowledge of a lawful order, did fail to obey the same by consuming alcohol under the legal age of 21.  
	Specification 2: On or about 10Nov96, having knowledge of a lawful order, did fail to obey the same by consuming alcohol under the legal age of 21.
	Specification 3: On or about 11Nov96, having knowledge of a lawful order, did fail to obey the same by consuming alcohol under the legal age of 21.
	Charge 111: violation of the UCMJ, Article 134:
	Specification 1: On or about 08Nov96, having been placed on restriction, did break said restriction.
	Specification 2: On or about 09Nov96, having been placed on restriction,  did break restriction.
	Specification 3: On or about 11Nov96, having been placed on restriction, did break said restriction.
	Findings: to Charge I, II, III and the specifications thereunder, guilty.
	Sentence: CHL for 34 days, forfeiture of $300.00 pay per month for 1 month.
	CA 970205: Sentence approved and ordered executed.

970115:	Counseling:  Advised of deficiencies in performance and conduct (Failure to conform to military standards, specifically on the Applicant’s pattern of misconduct.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

970425:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of commission of a serious offense.  

970425:	Applicant advised of rights and having elected not to consult, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

970428:	Commanding Officer, Marine Corps Communication-Electronics School, Marine Corps Air Ground Combat Center, recommended to Commanding General, Marine Corps Air Ground Combat Center that the Applicant be discharged under other than honorable conditions by reason of misconduct due to a commission of a serious offense.  The factual basis for this recommendation was Pvt G_ (Applicant)’s involvement in a domestic burglary and failure to adhere to the standards of the Marine Corps.  Pvt G_ (Applicant) entered a guilty plea and is awaiting sentencing.  He received nonjudicial punishment on 17 October 17, 1996 for violation of Articles 86, 92 and 111 of the Uniform Code of Military Justice.  Pvt G_ (Applicant) was counseled on 18 December 1996 for his failure to conform to Marine Corps standards.  On 19 December 1996 he was found guilty at a Special Court-Martial for violation of Articles 86, specifically, his unauthorized absence status from 12 to 13 November 1996, violation of Article 92, specifically, consuming alcohol under the legal age to do so and violation of Article 134, breaking restriction.  Pvt G_ (Applicant) was subsequently counseled on 15 January 1997 for his failure to conform to military standards.  On 10 February 1997, Pvt G_ (Applicant) was involved in a domestic burglary in which he was arrested by the San Bernardino County Sheriff’s department.  Commanding Officer’s comments:  

970509:	SJA review determined the case sufficient in law and fact.

970514:	Commanding General, Marine Corps Air Ground combat Center, advised the Commandant of the Marine Corps (MMSB) that the Applicant will be discharged under other than honorable conditions by reason of misconduct due to commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19970521 by reason of misconduct due to the                                                                  commission of a serious offense (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).  

 The Applicant states that now he realizes the importance and honor of being a United States Marine and regrets his decision to start underage drinking, The Applicant contends that had he been more mature he would not have made these mistakes. The NDRB advises the Applicant that when a Marine’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions.  Characterization of service as under other than honorable conditions 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 the award of nonjudicial punishment (NJP) on one occasion for violations of the Uniform Code of Military Justice (UCMJ).  The Applicant’s misconduct included unauthorized absence, underage drinking, and drinking during working hours. The evidence of record also shows that the Applicant received a Special Court- Martial for violations of UCMJ Article 86 (unauthorized absence), three specifications of Article 92 (Failure to obey a lawful order: underage drinking), and three specifications of Article 134 (breaking restriction). Further, there is evidence that at the time of separation, the Applicant had a civil arrest charge for a domestic burglary, that the Applicant pled guilty to the charges, and was awaiting sentencing. The Applicant’s characterization of service, reflect his misconduct, and fall below that required for an upgrade. Relief is therefore denied 

The Applicant requests an upgrade based on post service equity. The Applicant states he stopped drinking 4 years ago, is employed in the heating and air conditioning industry, and would like to provide for his family. 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 the discharge was appropriate and that the evidence of post-service conduct was found not to mitigate the conduct, which precipitated the discharge.  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.  The Applicant can provide documentation to support any claims of post-service accomplishments or any additional evidence related to this 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 January 1997 until 31 August 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 86, (unauthorized absence for more than 30 days) and Article 92, (failure to obey a lawful order).

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