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Docket No. MD04-00826

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

ex-PVT, USMC
Docket No. MD04-00826

Applicant’s Request

The application for discharge review was received on 20040420.  The Applicant requested the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record review.  The Applicant did not list a representative on his DD Form 293.  Subsequent to the application, the Applicant obtained representation by the American Legion.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041015.  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.  “Well I, as well as all the Marines in my unit, believed I was an outstanding Marine.  I loved the Marines.  They became my family, but I had a son who I lived for (story on 16).  I was motivated and squared away.  I had the highest PFT and most potential in my unit.  My MSGYSGT & CWO-3 put me on the merit Cpl board when I was only a LCpl for 3 months, when min was 6 mo to go in front of the board.  I completed MCI’s in my first year of service. I was motivated but my home life was a wreck.  I was smart and athletic I was 6^th in the state for HJ in track.  I dropped it to work at Taco Bell for my son. I attended CSOB straight out of high school.  I needed money to support my son.  I joined the Marines.  I came back from Boot Camp and my girl cheated on me.  I never got back with her. So, I was 2^nd in my class at PA school so I asked to be stationed CAMPEN near my son.  Slowly she grew to hate me because I wouldn’t take her back.  She used my son against me and never let me see him.  I missed his first talk, walk, teeth come in and 1^st B day.  I went in when he was 6 mo.  My dad is a Navy vet 22 yrs.  He was never there for me and it ruined me emotional.  I was strong, but had no relationship with my dad.  That was so important to me. I had to get out.  I gave up everything for him and I always will, unlike my father.”

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 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application. 
_______________________________________________________________________

In accordance with 32 C.F.R., section 724.166 and SECNAVINST 5420.174C, enclosure (1), paragraph 1.16, 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. 

Review of the service record reveals that this former member maintained satisfactory overall PRO/CON markings of 4.2/4.0 and earned a MM and PSB.  He was awarded NJP on 991206 for VUCMJ, Art. 86; NJP on 000721 for VUCMJ, Arts. 86, 92 (3 specs); NJP on 001018 for VUCMJ, Art. 92.  He also received 2 adverse counseling entries for VUCMJ, Arts. 86, 92, 134.  Following due process notifications, he was discharged Under Other Than Honorable Conditions due to a pattern of misconduct as authorized by MARCORSEPMAN, Par. 6210.3.

Essentially, as noted on DD Form 293, this Applicant is requesting that his discharge be upgraded because mitigating family problems contributed to his misconduct.  He has submitted 9 pages of additional documentation attesting to his in service and post-service good character, hard work, educational pursuits and community involvement 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 U.S.C., section 1553, and set forth in 32 C.F.R., part 724 and SECNAVINST 5420.174C, enclosure (1). 

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:

Copy of Unofficial Transcript from Marine Corps Institute (3 pages)
Resume
Character Reference, undated
Character Reference, dtd October 19, 2000
Character Reference Letter LCPL R____
Character Reference Letter from Cpl T___
Copy of DD Form 214
Copy of Associate in Arts Degree date December 12, 2003
Copy of Certificate of Appreciation  

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR (J)		981119 - 981227	COG

Period of Service Under Review:

Date of Enlistment:  981228		Date of Discharge:  010112

Length of Service (years, months, days):

	Active:    02  00  17  (Accounts for lost time.)
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  74

Highest Rank:  LCpl			MOS:  0121, Personnel Clerk

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.2 (4)			Conduct:  3.9 (4)

Military Decorations:  None

Unit/Campaign/Service Awards:  MM, Rifle Sharpshooter Badge, LOA

Days of Unauthorized Absence:  (3) 991918-991020; (5) 20000818-20000822

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:

991206:	NJP for violation of UCMJ, Article 86: UA from 0731, 991018 to 0100, 991021 (3 days).
Awarded forfeiture of $251.00 pay per month for 1 month (suspended for 6 months), restriction and extra duties for 14 days.  Not appealed.

000509:	NJP imposed and suspended on 991206 for a period of 6 months is hereby vacated and the punishment ordered executed.

000710:	Counseled for deficiencies in performance and conduct.  [Article 86 x 2 (Unauthorized absence) In Hands of Civilian Authorities on 000508 from 0130 to 0711 and from 0730 to 1300 from SPAC work section without proper authority from appointed place of duty; Article 92 x 3 (Wearing two (2) earrings on 000508 disobeying uniform regulations MCO P1020.34 PAR.1005.7a, did wear (2) earrings while on liberty in civilian attire, and was drinking alcohol under age; Article 134 x 3 (Public Intoxication) while on liberty on 000508 was arrested and charged by civilian law enforcement authorities with Public Intoxication, (Loud Music) while on liberty on 000508 was arrested and charged by civilian law enforcement authorities with having loud music; (Unbecoming a Marine) while on liberty on 000508 had a total disregard for the high standards of personal appearance and conduct traditionally associated with the Marine Corps when wearing civilian attire and while on liberty, Marine are identified in an out of uniform, and on and off duty.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

000710:	Counseled for deficiencies in performance and conduct.  [Article 86 (Unauthorized Absence) on 000619 at 0700 absent from SACo PFT at Lake O’nell Campen, CA without proper authority from appointed place of duty; Article 92 x 5 (1) (Disobeying a Lawful Order) on 000616 disobeying a direct order from NOC to stay in local area over the weekend.  (2) (Disobeying a Lawful Order) on 000619 a direct order from NCO to contact direct chain of command. (3) ((Disobeying a Lawful Order) on 000612 a direct order from NCO to complete SPAC Recall Roster.  (4 & 5) (Disobeying a Lawful Order) on 000630 disobeying uniform regulations MCO P1020.34 par.1005.7a wearing two (2) earrings.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
 	
000721:	NJP for violation of UCMJ, Article 86: UA from 0700, 000619 to 0730, 00619; violation of UCMJ, Article 92: (3 Specifications); Specification 1: Did on or about 000619, disobeyed a lawful order by failing to be at lake O’neil for the PFT; Specification 2: Did on or about 0030, 000619 disobeyed a lawful order to update, laminate, and distribute the SPAC recall roster; Specification 3: Did on or about 0400, 000630 disobey uniform regulation MCO P1020.34 par 1005.7a wearing two earrings in his ear.
Awarded forfeiture of $563.00 pay per month for 1 month, restriction and extra duties for 45 days (15 days restriction and 45 days extra duty suspended for 6 months), reduction to E-2.  Not appealed.

001018:	NJP for violation of UCMJ, Article 92: Did on or about 000818, violate a lawful order to wit: para 9 (e), MCO 1700.22C, dated 920714, by wrongfully possessing one (1) liter liquor bottle, “Ginebra”, “Karat”.
Awarded forfeiture of $502.00 pay per month for 2 months, reduction to E-1.  Not appealed.

001018:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

001018:	Applicant advised of rights and having elected not to consult 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.

001018:	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 is (the Applicant’s) failure to obey rules and regulations.  (The Applicant’s) intolerable actions over the past ten months have resulted in three nonjudicial punishments and two 6105 counseling.  Through his action, (the Applicant) had demonstrated that he no longer posses the potential for continued honorable Service in the Marine Corps.

001031:	SJA review determined the case sufficient in law and fact.

001102:	GCMCA [Commanding General, Marine Corps Base, Camp Pendleton] 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 20010112 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).

Issue 1 & 2:  The Applicant contends his disciplinary problems were the result of stress caused by his family and personal situation.   The Applicant’s personal situation does not mitigate his disobedience of the orders and directives that regulate good order and discipline in the United States Marine Corps.  His service record is marred by award of nonjudicial punishment (NJP) on three separate occasions for several counts of unauthorized absence, failure to obey orders and regulation, public intoxication and arrest by civil authorities for disturbing the peace; thereby, substantiating his misconduct.  The NDRB recognizes that serving in the Marine Corps is challenging.  Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve this great country.  It must be noted that most Marines serve honorably and faithfully earning their honorable discharges.  In fairness to those Marines, commanders and separation authorities are tasked to ensure that undeserving receive no higher a service characterization than is due.  The NDRB found the Applicant's service was equitably characterized.  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 86, Unauthorized absence; Article 92, Failure to obey order or regulation; Article 134, Public intoxication and Disturbing the peace.

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

The remaining portion of this document is divided into 4 Parts: Part I - Applicant’s Issues and Documentation, Part II - Summary of Service, Part III – Rationale for Decision and Pertinent Regulation/Law, Part IV - Information for the Applicant.