Author: CAP
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Company: NCPB

Docket No. MD05-01568

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

FOR OFFICIAL USE ONLY

ex-PVT, USMC
Docket No. MD05-01568

Applicant’s Request

The application for discharge review was received on 20050920.  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 did not designate a representative on the DD Form 293.  

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060608.  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 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 don’t feel a few UA charges for being late to formations warrant the discharge which I receive as others seemed to get away with it.”

Documentation

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

Only the service record book was reviewed.  The Applicant did not provide additional documentation for the Board’s consideration.

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	20011011 - 20020527		COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20020528		Date of Discharge:  20040630

Length of Service (years, months, days):

Active:    02  01  03  
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  18 

Years Contracted:  4 

Education Level:  12				AFQT:  49

Highest Rank:  LCpl				MOS:  3051/5811

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.8 (5)				Conduct:  3.7 (5)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  Sea Service Deployment Ribbon, National Defense Service Medal

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:

030717:	Counseling:  Advised of deficiencies in performance and conduct (On 030712 SNM violated article 108 of the UCMJ which could of resulted in NJP by breaking a window of the fourth deck lounge of the barracks.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued. Directed to pay $400 to repair the window.

030825:	NJP for violation of UCMJ, Article 86.
	Specification: On or about 0730 on 0030811, SNM was absent from his point of place of duty and remained absent until on or about 0815 on 030811.
	Violation of UCMJ, Article 91:
	Specification:  On or about 0815 on 030811, SNM displayed insubordinate conduct towards a Noncommissioned Officer by flipping over two chairs and using profane language towards a Noncommissioned Officer.
	Violation of UCMJ, Article 92:
	Specification:  On or about 0815 on 030811, SNM did not take a seat and walked off after being told to take a seat by a Noncommissioned Officer.
	Award:  21 days of correctional custody unit.  Not appealed.

030825:	Counseling:  Advised of deficiencies in performance and conduct (On 030825 SNM was found guilty at battalion level NJP for violating articles 86, 91, and 92 of the UCMJ), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

030826:	NJP for violation of UCMJ, Article 92:
	Specification:  On or about 030825, SNM failed to obey by refusing to train at the Correctional Custody Unit.
Award:  Forfeiture of $645.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-2.  Not appealed.

030826:	Counseling:  Advised of deficiencies in performance and conduct (On 030826 SNM was found guilty at battalion level NJP for violating articles 92 of the UCMJ by refusing to train while assigned to CCU, Camp Hanson, Okinawa, Japan.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

031215:	Counseling:  Advised of deficiencies in performance and conduct (On 031203 SNM Applicant violated article 91 and 92 of the UCMJ which could have resulted in NJP by being disrespectful and not following orders of a NCO.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

040309:	Counseling:  Advised of deficiencies in performance and conduct (Non-recommendation for Lance Corporal for the month on April, SNM is pending adjudication for Violation of Articles 86, 92.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

040312:	NJP for violation of UCMJ, Article 86:
	Specification:  On 26^th Jan 04; SNM was not at his appointed place of duty which was at the Supply Company Office for a 0730 Accountability Formation.
Violation of UCMJ, Article 92:
Specification:  On 23 Jan 04; SNM was informed of the out of bounds limits set forth by MCO.  SNM went out of bounds during liberty hours, broke the out of bounds limit by driving to Florida to get married.
	Award:  Forfeiture of $552.00 pay per month for 2 months, restriction and extra duty for 45 days (suspended for 6 months), reduction to E-1.  Not appealed.

040316:	Counseling:  Advised of deficiencies in performance and conduct (Violation of Articles 86, 92.  Article 86, On 26 Jan 04 SNM was not at his appointed place of duty.  SNM was instructed to be at the Supply Company office from formation prior to being released.  Article 92 during the weekend of 23 Jan 04 SNM went further than the out of bounds limit to Florida to be married without authorization.), sources of assistance provided, and advised being processed for administrative discharge action.

040420:	Vacated suspension of punishment (Forfeiture of $552.00 pay per month for 2 months, restriction and extra duty for 45 days awarded at NJP 040312) due to continued misconduct, specifically, violated Article 86 in that he failed to report to work at 0645 on 040405 and a Battalion formation at 0630 on 040409.

040430:	NJP for violation of UCMJ, Article 86 (2 specs):
	Specification 1: On 040406 at 0645 SNM failed to be at his appointed place of duty, SNM arrived at approximately 0730.
	Specification 2: On 040409 failed to show up at his appointed place of duty at 0630, SNM arrived at approximately 0830.
	Award:  Forfeiture of $596.00 pay per month for 2 months (suspended for 6 months), restriction and extra duty for 45 days.  Not appealed.

040430:	Counseling:  Advised of deficiencies in performance and conduct (Violation of Aricles 86x2, On 040406, at 0645 SNM failed to report to work for a Service C inspection, SNM did not report to work until approximately 0730, SNM stated he had over slept.  On 040409 SNM failed to show up for Battalion formation at 0630, SNM arrived at approximately 0830 and checked in with the OOD.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued

040525:	Counseling:  Advised of deficiencies in performance and conduct (Administration Separation because of a pattern of misconduct.  At this time, my Commanding Officer feels that my conduct has not improved; I am being processed for administrative Separation.)

040608:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service which you may receive is Other Than Honorable Conditions.  Although the Commander, 2d Force Service Support Group will make the determination of characterization if you are separated, I am recommending you receive an Other Than Honorable characterization of service.  The factual basis for this recommendation was the adjudication at four Battalion Level NJP respectively adjudicated on 25 Aug 03, 26 Aug 03, 12 Mar 04, 30 April 04; all four of these NJP’s occurred within the same enlistment.  

040608:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

040608:	Commanding Officer, 2d Supply Battalion, recommended to Commander, 2d Force Service Support Group, that the Applicant be discharged under other than honorable conditions by reason of misconduct.  The factual basis for this recommendation was based on the adjudication of the respondent at Battalion level NJP for:  Violation of 86, 91, 92 adjudicated on 25 Aug 03; Violation of Article 92 adjudicated on 26 Aug 03; Violation of Article 86, 92 adjudicated on 12 Mar 04; violation of Article 86x2 adjudicated on 30 April 2004; all four of these NJP’s occurred within the same enlistment.  Commanding Officer’s comments:  “This command has exhausted every lesser means possible before resorting to more severe actions and Private L_ (Applicant) has yet to show improvements.  Private L_ (Applicant) has been afforded the opportunity to redeem himself at Battalion level NJP and in turn failed to do so by being UA on more than one occasion, which was the condition for the suspension of his punishment awarded at his 12 March 04 NJP, thus compelling the Commanding Officer to vacate such suspension (see enclosure 5).  Due to the detraction of good order and discipline that Private L_ (Applicant) as brought upon this command, it is requested that he be separated from the military service in the most expeditious manner.”

040623:	SJA review determined the case sufficient in law and fact.

040624:	Commander, 2d Force Service Support Group, advised the Commandant of the Marine Corps, Headquarters (MMSB) that the Applicant will be discharged 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 20040630 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).  

When a Marine’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions.  An under other than honorable conditions discharge is warranted when significant negative aspects of a Marine’s conduct or performance of duty outweigh the positive aspects of the member’s military record.  The Applicant’s service was marred by 7 retention warnings, 4 nonjudicial punishment proceedings for violations of Articles 86 (4 specs), 91, and 92 (3 specs) of the UCMJ.  Additionally, the Applicant was counseled for unadjudicated misconduct for violations of Article 108, 91, and 92 of the UCMJ. The Applicant’s conduct, which forms the primary basis for determining the character of his service, was far below that required for an upgrade of the characterization of service.  An upgrade would be inappropriate.  Relief is therefore 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 P1900.16F), 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 91, 92, and 108.

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