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

 ex-PFC, USMC
Docket No. MD04-01003

Applicant’s Request

The application for discharge review was received on 20040604.  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 listed the Veterans of Foreign Wars as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041029.  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: GENERAL (UNDER 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:

1.  “I would like to change my general discharge to an honorable one for the following reasons: I am attempting to begain a career in law inforcement.  I have spoken to several police departments and the general discharge I have has been holding my applications back from the reviewing process.  I would also like to serve as a reservist.  I feel I can still give honorable service to the Marine Corps.”

Additional issues submitted by Applicant’s counsel/representative (VETERANS OF FOREIGN WARS):

2.  “Applicant indicated above requested that Veterans of Foreign Wars act as counsel concerning his application.  His records were reviewed on 10-12-04 and the following comments are hereby submitted.  

We support the applicant’s contentions that his discharge be upgraded.

We refer this case to the Board for their careful and compassionate consideration and request the applicant’s discharge be reviewed for an upgraded discharge.”

Documentation

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

Applicant’s DD Form 214 (2)
Ltr from Promotions Branch dtd 040401
Promotion Warrant dtd 040401
Mountain View College acceptance ltr
Dallas County Community College enrollment transcript
Ltr from employer dtd 040610

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		980608 – 011010	HON
	Inactive: USMCR(J)		970616 – 980607	COG

Period of Service Under Review:

Date of Enlistment:  011011		Date of Discharge:  030820

Length of Service (years, months, days):

	Active:    01  10  09
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  33

Highest Rank:  Sgt

Final Enlisted Performance Evaluation Averages (number of marks):

Fitness reports for the period under review were available to the board

Proficiency:  1.2 (1)			Conduct:  1.2 (1)

Military Decorations:  None

Unit/Campaign/Service Awards:  GCM, SSDR, NDSM, CoC (2), LoA

Days of Unauthorized Absence:  None

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority:  MARCORSEPMAN Par. 6210.3.

Chronological Listing of Significant Service Events:

030224:	Competency Review Board Recommendations:  Reduce to Corporal and seek immediate professional counseling.

030304:	Substance Abuse Evaluation:  SNM does not reveal a pattern of problematic alcohol use that is indicative of a substance abuse disorder.  Medical Recommendation:  Attend Alcohol Impact Class.  

030304:	CO approved report of Competency Review Board and recommendation for reduction to E-4/Corporal.

030305:	Summary Court-Martial
	Charge I:  VUCMJ Art 92:  Wrongfully operating a privately owned vehicle.
	Charge II:  VUCMJ Art 134:  Impersonating a noncommissioned officer.
	Charge I:  Guilty
	Charge II:  Not guilty
	Sentence:  Red to E-2, forf $645.00 for 1 mo, rest for 45 das.
	CA:  030503, approved and ordered executed.

030312:	Counseled for deficiencies in performance and conduct.  [Japanese Civilian Court conviction for Driving While Intoxicated and Injury through professional negligence on 6 January 2003.  An offense for which I was the subject of a competency review board for professional incompetence and was subsequently reduced to the rank of Corporal on 12 March 2003.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

030328:	Applicant completed Alcohol Impact course.  

030703:	Applicant notified of intended recommendation for general discharge by reason of misconduct due to a pattern of misconduct as evidenced by your reduction at a Competency Review Board for driving while intoxicated and a Summary Courts-Martial for wrongfully operating a privately owned vehicle. 

030724:	Commanding Officer recommended a general discharge by reason of misconduct due to a pattern of misconduct.  The factual basis for this recommendation was your reduction at a Competency Review Board for driving while intoxicated and a Summary Court-Martial for wrongfully operating a privately owned vehicle.

030731:	Counseled for deficiencies in performance and conduct.  [Pattern of Misconduct:  Competency Review board for professional incompetence and a Summary Court-Martial for wrongfully operating a privately owned vehicle.]  Necessary corrective actions explained, sources of assistance provided.
	
030731:	Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

030805:	SJA review determined the case sufficient in law and fact.

030806:	GCMCA [CG, 1MAW] directed the Applicant's general (under honorable conditions) discharge by reason of misconduct due to a pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was awarded a general (under honorable conditions) discharge on 20030820 for misconduct due to a pattern of misconduct (A & 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.  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 a conviction at court-martial for a violation of Article 92 of the UCMJ and a competency review board, which resulted in his reduction from Sergeant to Corporal as a result of a Japanese civil conviction for driving while intoxicated.  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. Marine Corps and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

Concerning reenlistment, the NDRB has no authority to change reenlistment codes or make recommendations to permit reentry into the naval service or any other of the Armed Forces.  The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy or Marine Corps.  Reenlistment policy of the Marine Corps is promulgated by the Commandant, United States Marine Corps, Code MMEA, 3280 Russell Road, Quantico, VA 22134.  Neither a less than fully honorable discharge nor an unfavorable "RE" code is, in itself, a bar to reenlistment.  A request for a waiver is normally done only during the processing of a formal application for enlistment through a recruiter.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  

Issue 2.  The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and/or the reason for discharge if such change is warranted.  There is no evidence of impropriety or inequity in the Applicant’s discharge.  The Applicant’s misconduct is clearly documented.  Therefore, relief is 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 92, failure to obey lawful order.

C.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

D.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

E.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

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 “afls14.jag.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:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023