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

 ex-PFC, USMC
Docket No. MD04-01069

Applicant’s Request

The application for discharge review was received on 20040617.  The Applicant requested the characterization of service received at the time of discharge be changed to honorable or general/under honorable conditions.  The Applicant requests a personal appearance discharge review before a traveling panel closest to (left blank).  The Applicant did not designate a representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington National Capital Region.  The NDRB also advised the Applicant that the board first conducts a documentary review prior to any personal appearance hearing.  Subsequent to the application, the Applicant obtained representation by the American Legion.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050224.  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:

1. “To Whom It May Concern:

I am writing this letter in regard to my discharge from the Marine Corps in April of 2000.  This is my second submission for review.  The Veterans Affairs of Des Moines, IA states the previously submitted DD-292 is lost and the paper trail ended in Washington and they are unable to help me any further.  The package I submitted had valuable information (character statements) and I am only able to reproduce one of those, as I have not been able to reach or track down the other Marines, since I was told the paper work was lost.

I spent three years, nine months and 18 days fulfilling my Marine duties.  I had just two months, twelve days left before I could have taken terminal leave.  I feel my other than honorable discharge is not justified and ask that this be upgraded to a honorable discharge.

Please allow me to further explain.  I was on stand-by for separation board my last eleven months and it was not until March 2000 that I received by board.  This board was held at MCRD San Diego.  The attorney I had was a military officer.  I had only 3 meetings to discuss my case and he repeatedly assured me that my standing was the best he had every seen.  It certainly appeared that the prosecution had access to priviledged information that I had only shared with my lawyer.  I was also advised by the attorney not to apologize to the board for any of my previous conduct.  I took this advice and in retrospect do not feel this was in my best interest.  I feel strongly that my lawyer did not comprehend the severity of the situation and did not defend me as aggressively as the case demanded.

While in the Marine Corps boot camp I was a squad leader.  Upon graduation from MRCD San Diego I left to go to Camp LeJeune for administration school.  This was a surprise as I thought I would be assigned to work on helicopters.  Even though disappointed I made the best of the situation and finished 4th in my class of 25.  I was then shipped to San Mateo to 3/5 Marines.

It was during this time I began to drink alcohol after work socially with other Marines.  After a time I began to drink more frequently after work and I received two NJP’s for being drunk and disorderly.  I do not excuse my behavior but drinking and drinking a lot was a norm for most of the unit and I did not recognize that I had a problem

I transferred to WFTBN, where I was a Diary Chief for about 4 months, until a higher rank transferred to my department.  Shortly after CWO3 O_ came on board it became obvious to everyone in the office he did not care for me on a personal level.  While I was never disciplined for any work reasons and continued to perform my duties at a high level, it was common knowledge he wanted me out.

I continued to drink, and around this time the thought that I might have a drinking problem entered my head, but I was not ready to face this issue, so I refused to think or address the possibility.  During all my work hours I performed my job well, and my records reflect this.  I never drank alcohol on the job and I took pride in my work.  I worked hard in all areas of my job role.  This is true from the day I entered boot camp until the day I left the Marine Corps.  As I stated before my records reflect only good things about my work and work ethics.

About this time the unit took action.  It was recommended that I go inpatient for treatment by a United States Navy doctor and I agreed.  My unit denied me the opportunity to receive the level of treatment that was recommended.  I was told I was too valuable in the work environment to be gone for the length of time inpatient treatment required.  Instead I was put into an outpatient treatment program.  I was supposed to take pills that would make me sick if I drank alcohol.  A report was produced during my board that stated my SACO officer physically watched me take the pills.  I swear this did not happen and on several occasions I did not take the pills and continued to drink.  I did however begin to realize and accept that I had a drinking problem and that I had to deal with it.  During this time period I was also trying to deal with my parents divorce and a girlfriend back home that dumped me.  I am not making excuses just trying to explain what was going on when I received my last NJP.  I was told then I would be discharged.

Several options were available to me.  I wanted to be a Marine.  I wanted to finish my four years out.  I wanted to prove to everyone I had what it took.  I was transferred to the maintenance department.  I was in charge of recruits again and did well with my duties.  I worked long hours (many more than required) and put everything I had into being an excellent Marine in an attempt to redeem myself, and to demonstrate I was serious about my commitment not to drink.  I did my job so well that I was put up for the Navy Achievement Medal.  This is the highest award I could receive and very few Marines are given the honor of being nominated.

I began to make changes in my lifestyle.  I moved off base where I would not be faced with the temptation of having a few drinks with the guys.  I stayed away from alcohol.  Through all of this I played and started for the ALL MARINE baseball team.  The warrant office (CWO3 O_) made every attempt to get me thrown off the team.  I don’t know how my coach did it, with all the pressure being put on him, but he somehow managed to keep me on the team and I continued to play ball.

I knew at this point nothing I did would alter CWO3 O_ opinion of me, but I kept trying to prove through my actions I was a good Marine.

The past several years have been very hard for me knowing this other than honorable discharge is a disgrace to me and I do not feel that my actions warranted this discharge status.  I believe that if I could have attended the inpatient program recommended by the medical officer this could have made the difference.  I was a good Marine with a bad drinking problem.  The last nine to ten months of my military career I tried to prove that I could be a stellar Marine .  For me to have an other than honorable discharge is devastating.  Since my discharge from the Marines, I have put myself through college and just this month received my bachelor’s degree in Sports Management and Marketing.  I am currently considering to pursue my Masters degree at the University of Wichita.  I feel my direction in life has turned 360 degrees for where I was 6 years ago, and that I will continue to strive to meet my goals.  But the burden that lies upon my back, of not being honorable eats away at me every day.

I am asking you, with the utmost respect, to allow me to be honorable.  I think that I demonstrated that I was good Marine with a drinking problem.  I have done everything in my power to regain some of my pride and have done what I could to further educate myself so that I may be able to contribute to this world in some way.  I believe I am going in the right direction and all I can ask is that my other than honorable discharge be changed to honorable.

Respectively,
(signed)
J_ P_ (Applicant)
(Address deleted)”

Additional issues submitted by Applicant’s counsel/representative (AMERICAN LEGION):

2.  “Equity Issue:  Based on our review of evidentiary record and on behalf of this former member, we request that the Board consider provisions of SECNAVINST 5420.174D, Part V, Paragraph 503, as it pertains to post-service conduct, in assessing the merits of this application. 
_______________________________________________________________________

In accordance with Title 32, CFR, Section 724.166 and SECNAVINST 5420.174D, Part I, Paragraph 120, The American Legion submits to the Naval Discharge Review Board (NDRB or Board) the above issue and following statement in supplement to this Applicant’s petition.

The SRB is incomplete.  In particular part of the discharge package is missing. Review of the available records reveals that this former member earned the SSDR, COC, LOA and RMB.  He received several adverse counseling entries. On 971204, he was awarded NJP for VUCMJ, Articles 92, 128, 134.  On 990315, he was awarded NJP for VUCMJ, Article 92.  On 990709, he was awarded NJP for VUCMJ, Article 91.  On 990922, he was awarded NJP for VUCMJ, Article 128.  On 000419, he was discharged Under Other Than Honorable Conditions due to a pattern of misconduct as authorized by MARCORSEPMAN, Paragraph 6210.3.

Essentially, as noted on DD Form 293, this Applicant is requesting that his discharge be upgraded because his alcohol dependency contributed to and mitigated his misconduct of record.  He has submitted 3 pages of additional documentation attesting to his good post-service conduct and educational pursuits for consideration.

The American Legion’s express purpose in providing this statement and any other submittals or evidence filed is to assist this Applicant in the clarification and resolution of the impropriety or inequity raised.  To that end, we rest assured that the NDRB’s final decision will reflect sound equitable principles consistent in law, regulation, policy and discretion as promulgated by Title 10, USC, Section 1553, and set forth in Title 32, CFR, Part 724 and SECNAVINST 5420.174D.

This case is now respectfully submitted for deliberation and disposition.”

Documentation

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

Character reference, undated
Memorandum, dtd 8 Feb 00
Certificate of Attendance, dtd 1/28/99 (2 copies)
Applicant’s DD Form 214 (2 copies)
Blank DD Form 1351-2 (2 copies)
NAVMC 11060 (2 pages-2 copies)
SACC consult Sheet, dtd 99309 (2 pages)
Discharge Recommendation, dtd 14 Oct 1999 (2 pages-2 copies)
13 pages from the Applicant’s Medical Record
4 pages from the Marine Corps Retirement and Separations Manual
Award Recommendation (4 pages)
American Legion Guide, dtd February 2001 (12 pages)
Missouri Western State College Transcript, dtd 05/25/04 (2 pages)
Congratulatory ltr, dtd May 17, 2004

PART II - SUMMARY OF SERVICE

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

	Active:   			None			HON
	Inactive: USMCR (J)		960430 - 960630	COG

Period of Service Under Review:

Date of Enlistment:  960701		Date of Discharge:  000419

Length of Service (years, months, days):

	Active:    03  09  19
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  49

Highest Rank:  LCpl			MOS:  0121 (Personnel clerk)

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  NMF*			Conduct:  NMF*

Military Decorations:  CertCom, LtrApp

Unit/Campaign/Service Awards:  SSDR

Days of Unauthorized Absence:  None

	* No marks were found in Applicant’s service record.

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:

970929:	Counseled for deficiencies in performance and conduct.  [Failed to arrive at appointed place of duty at prescribed time.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

971121:	NJP for violation of UCMJ, Article 92:  … having knowledge of a lawful order … did fail to obey the same …
Violation of UCMJ, Article 128:  … did assault … by grabbing him …
Violation of UCMJ, Article 134:  … drunk and disorderly …
Awarded forfeiture of $122.00 per month for 1 month, and 7 days restriction and extra duties.  Forf susp for 6 mos. Not appealed.

971124:	Counseled for deficiencies in performance and conduct.  [Drunk and disorderly conduct, simple assault and failure to obey order and underage drinking.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

980406:	Counseled for deficiencies in performance and conduct.  [During routine inspection of barracks (Applicant’s) room was found to be completely unsat.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

981008:	Counseled for deficiencies in performance and conduct.  [Poor judgment while on liberty which resulted in an altercation.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

981211:	Counseled for deficiencies in performance and conduct.  [Lack of concentration and initiative by failing a HMMWV course.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

990315:	NJP for violation of UCMJ, Article 92:  … having knowledge of MCO P1020.34F, violate same …
Awarded forfeiture of $265.00 per month for 1 month, and 14 days restriction and extra duties.  Forf susp for 6 mos.  Not appealed.

990323:	Counseled for deficiencies in performance and conduct.  [Lack of judgment, maturity and conduct detrimental to good order and discipline.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

990416:	Applicant completed Intensive Outpatient Treatment (IOP) at Camp Pendleton.

990702:	Applicant evaluated at SACC after an alcohol related incident.  He returned to drinking after discontinuing his aftercare program.

990709:	NJP for violation of UCMJ, Article 91:  … disrespectful to Sgt …
Awarded forfeiture of $286.00 per month for 1 month, and 14 days restriction and extra duties.  Not appealed.

990712:	SACO/DACO eval/comment determined the Applicant was alcohol dependent based on reported use, alcohol related incidents and history.  Recommended, “treatment program as command sees fit; patient counseled to discontinue use of alcohol.”

990922:	NJP for violation of UCMJ, Article 128:  … assaulted LCpl …
Awd red to E-2, forf of $537.00 per month for 2 months, and 45 days restriction and extra duties.  Not appealed.

991014:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.  The factual basis for this recommendation was “recent involvement with military authorities, his documented counseling entries and past nonjudicial punishments.

	* Applicant’s discharge package is missing from the service record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20000419 under other than honorable conditions for misconduct due to a pattern of misconduct (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).

Issues 1 & 2:  Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  No such error or injustice occurred during the Applicant’s enlistment.  In the Applicant’s case, the Board discovered no impropriety or inequity and considers his discharge to be proper and equitable.  A service characterization of under other than honorable conditions is warranted when the member’s conduct constitutes a significant departure from that expected of a member of the United States Marine Corps.  The record is devoid of any evidence the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  While he may feel “(he) performed (his) job well” and “(he) demonstrated that (he) was good Marine,” the Applicant’s service record is marred by several negative page eleven counseling entries and the awarding of nonjudicial punishment (NJP) on four separate occasions, for insubordinate conduct, failure to obey orders and regulations, assault on two separate occasions and being drunk and disorderly.  The Applicant’s summary of service clearly reflects his disobedience of the orders and directives regulating good order and discipline in the Marine Corps, and demonstrated he was unsuitable for further service.  It must be noted most Marines serve honorably; thereby, earning their honorable discharges.  In fairness to those Marines, commanders and separation authorities are tasked to ensure the undeserving receive no higher a service characterization than is due.  An upgrade to honorable or general (under honorable conditions) would be inappropriate.  Relief denied.
 
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.  However, 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.  Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge.  Evidence of a positive employment record, documentation of community service, certification of non-involvement with civil authorities, and credible evidence of a substance-free lifestyle are examples of verifiable documents that should be provided to receive consideration for relief, based on post-service conduct.   At this time, the Applicant has not provided sufficient documentation of good character and conduct to mitigate his misconduct while on active duty.  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 additional documentation to support any claims of post-service accomplishments 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 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 91, Insubordinate conduct toward a noncommissioned officer; Article 92, Failure to obey a regulation; Article 128, Assault; Article 134, Drunk and disorderly conduct.

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