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

FOR OFFICIAL USE ONLY

ex-PVT, USMC
Docket No. MD05-00999

Applicant’s Request

The application for discharge review was received on 20050524.  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 personal appearance discharge review before a traveling panel.  The Applicant designated Disabled American Veterans as the representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington DC.  A hearing was scheduled for the Applicant, however, the Applicant failed to show up for his hearing.  The Applicant’s case was converted to a documentary review.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20070201.  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 characterization of the discharge and reason for 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 to the Board:

“I J_ C_, I would like to change my discharge to Honorable Because of the following reasons.  I was in combat I would have died however I didn’t.  So I made some mistakes.  While under the influence of alcohol.  That does not make me a bad person.  I paid for my mistakes already.  The cost of my mistake was in the amount of $30.00 dollar.  I have no excuse but I hope that you can see my situation.

Thank you,

[sign] (Applicant)”

Documentation

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

Character Reference ltr from I_ L_, dtd April 18, 2005  (2 copies)
Time Magazine copy, Kuwait City, dtd February 27, 1991  (2 copies)
Applicant’s DD Form 214  (Service 2)  (2 copies)
Character Reference ltr from M_ P_ [Applicant’s mother], dtd April 25, 2005
Character Reference ltr from L. T_, dtd April 17, 2005
National Personnel Records Center, dtd June 14, 2004
Appointment of Veterans Affairs Service Organization as Applicant’s representative, dtd April 13, 2005  ((2 copies)
VA Form 21-526 Pension Application (8 pages)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	19890728 – 19900110		COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19900111		Date of Discharge:  19921016

Length of Service (years, months, days):

Active:    02  09  06  
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  23

Years Contracted:  4 

Education Level:  12				AFQT:  32

Highest Rank:  LCpl				MOS:  0311

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.7(7) 				Conduct:  3.7 (7) 

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  Rifle Marksman Badge, Sea Service Deployment Ribbon (w/1*), National Defense Service Medal, Combat Action Ribbon, Meritorious Mast, Kuwait Liberation Medal, Southwest Asia Service Medal.

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct - Pattern of misconduct (administrative discharge board required but waived), authority:  MARCORSEPMAN Par. 6210.3.

Chronological Listing of Significant Service Events:

900628:	NJP for violation of UCMJ, Article 113:  At “A” Co, InfTrngBn, SOI, Camp Pendleton, CA 92055-5040:  On or about 2200, 900615, Misbehavior of sentinel or lookout, to wit; SNM was found sleeping while on post as 3rd PLT firewatch.
	Award:  Forfeiture of $100.00 pay per month for 1 month, restriction and extra duty for 14 days.  Not appealed.

900724	NJP for violation of UCMJ, Article 86:  At “A” Co, InfTrngBn, SOI, Camp Pendleton, CA 92055-5040: UA (AWOL) from 2235, 900722, to wit; SNM absented himself from his appt place of duty.
Award:  Forfeiture of $189.00 pay per month for 1 month, restriction and extra duty for 14 days (suspended for 1 month).  Not appealed.

920204:	NJP for violation of UCMJ, Article 121:  At B Co 3d LAIBN, on or about 1735, 920110, attempted to take without paying for two audio cassettes from the MCAGCC 29 Palms CA.  
Award:  Forfeiture of $200.00 pay per month for 2 months, restriction and extra duty for 30 days, reduction to E-2.  Not appealed.

920210:	Drug & Alcohol dependency evaluation by J_ V_, MD  LT. MC, USNR.
	Patient has been drinking since 1990. 
A/P:	Substance abuse
	No evidence of psychological dependence.

920420:	Counseling:  Advised of deficiencies in performance and conduct (As a new member of Delta Company numerous NJP’s have been noted, and a definite pattern of misconduct is evident in your SRB.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

920828:	NJP for violation of UCMJ, Article 121:  In that SNM, did on or about 1730, 920817, at bldg #413, Kadena Air Force Base, Branch Exchange, steal from the KAB, Branch Exchange a bottle of cologne and (1) shirt of value of about $32.99.
Award:  Forfeiture of $100.00 pay per months for 2 months, restriction and extra duty for 30 days, reduction to E-1.  Not appealed.

920919: *	Commanding Officer, 3rd Marine Division, directed the discharge of the Applicant with under other than honorable conditions by reason of misconduct due to a pattern of misconduct.  [*It is presumed that this date was stamped in error and that the actual date was between 920923 and 921016.]

920919:*	SJA review determined the case sufficient in law and fact.  [*It is presumed that this date was stamped in error and that the actual date was between 920923 and 921016.]

920921:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service of under other than honorable conditions by reason of misconduct due to pattern of misconduct.  The factual basis for this recommendation was failure to conform to the standards of the Marine Corps.  

920921:	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.

920923:	Commanding Officer, 1st Armored Assault Battalion, recommended to Commanding General, 3d Marine Division that the Applicant be discharged with an under other than honorable conditions characterization by reason of misconduct due to a pattern of misconduct.  The factual basis for this recommendation was “due to Private First Class P_ (Applicant)’s misconduct due to a pattern of misconduct.  Commanding Officer’s comments:  The [Applicant] has received “four Non-Judicial Punishments, two of which were for shop lifting.  He has been counseled concerning his deficiencies.  By his actions and inability to respond to counseling, he has demonstrated that he has no potential for further Honorable service.”

921016:	DD Form 214: Applicant discharged on October 16, 1992 for misconduct due to pattern of misconduct.  The characterization of service was under other than honorable conditions.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19921016 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).  The Board presumed regularity in the conduct of governmental affairs (E).

When the service of a member of the U.S. Marine Corps 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 a retention warning and four nonjudicial punishment proceedings for violations of UCMJ Articles 113 (sleeping on post), 86 (unauthorized absence), and 121 (larceny).  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.

The Applicant contends that his problems in the Marine Corps can be attributed to his overindulgence in alcohol.  While he may feel that his abuse of alcohol was the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service.  The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied

The following is provided for the edification of the Applicant.  The Applicant has exhausted his opportunities for review by the NDRB.  The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of Naval service, if he desires further review of his case.

Pertinent Regulation/Law (at time of discharge)

A.  Paragraph 6210, Misconduct, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16D), effective 27 Jun 89 until 17 Aug 95.

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 113 (sleeping on post), Article 121 (larceny).

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, Para 211, Regularity of Government Affairs.  

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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction.  You should read Enclosure (5) of the Instruction 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 Instruction 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