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USMC | DRB | 1999_Marine | MD99-00658
Original file (MD99-00658.rtf) Auto-classification: Denied


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

ex-PVT, USMC
Docket No. MD99-00658

Applicant’s Request
The application for discharge review, received 990414, requested that the characterization of service on the discharge be changed to general/under honorable conditions. The applicant requested a documentary record discharge review. The applicant did listed the Department of Work Force Excellence as her representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000110. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service. 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.

The NDRB did note an administrative error on the original DD Form 214. Block 28, Narrative Reason for Separation should read: “PATTERN OF MISCONDUCT (board required but waived” vice “MISCONDUCT”. Block 26, Separation Code should read: “HKA1” vice “HKN1”. The original DD Form 214 should be corrected or reissued as appropriate.


PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. The representative states “Ms Y-- was under a great deal of stress during her enlistment in the U.S.M.C. This stress level caused Ms. Y--to make poor judgements about her release from active duty. Ms Y-- had signed her right away to legal counsel. This was done under extremely stressfully circumstances. At that time she was not fully aware of the legal and social ramifications of her actions. While it is true her service record was not excellent her discharge and conditions of release were excessive. Therefore we request this be upgraded to a General under Honorable Discharge so that Ms. Y-- is made whole”.

Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
         None

PART II - SUMMARY OF SERVICE

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

         Active: USMC              None
         Inactive: USMCR(J)                960712 - 970622  COG

 Period of Service Under Review :
Date of Enlistment: 970623               Date of Discharge: 980424

 Length of Service (years, months, days):

         Active: 00 07 26 (excludes time lost)
         Inactive: None

 Age at Entry: 17                          Years Contracted: 4

Education Level: 11                        AFQT: 52

 Highest Rank: PVT

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.7 (2)              Conduct: 3.2 (2)

 Military Decorations: None

 Unit/Campaign/Service Awards: Rifle Marksmanship Badge

 Days of Unauthorized Absence: 66

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 :


971120:  Counseled for deficiencies in performance and conduct, specifically failure to go to morning formation, unauthorized absence from unit 771106-771112, and violating Camp Johnson’s AreaO P11101.5B by entering a room that was an unauthorized area for female personnel. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
971121:  NJP for violation of UCMJ, Article 86: failed to go to morning formation; NJP for violation of UCMJ, Article 92: Wrongfully and unlawfully entering room 132, an unauthorized area for female personnel; NJP for violation of UCMJ, Article 86: UA from 971106-971112.
Awarded forfeiture of $400.00 per month for 2 months, 30 days restriction. Forfeiture of $150.00 per month for 2 months and 15 days restriction suspended for 6 months. Not appealed.
971223:  Forfeiture of $150.00 per month for 2 months and 15 days restriction
imposed and suspended on 971120 is hereby vacated and ordered executed this date.

980108:  Counseled for deficiencies in performance and conduct, specifically unauthorized absence from unit 971125 to 971222. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

980112:  NJP for violation of UCMJ, Article 86: UA 1800, 971125 – 1400, 971222.
 Awarded forfeiture of $150.00 per month for 2 months, restriction for 45 days. Restriction for 40 days suspended for 6 months. Not appealed.

 980221:  Applicant declared a deserter on 980221 having been an unauthorized absentee since 1300, 980122 from SScol, MCSSS.

980226:  Applicant apprehended by military authorities at 0730, 980224 at MWSS 471 Detachment B, Green Bay, WI. Delivered to SScol, MCSSS 2100 980224.

980306:  Counseled for deficiencies in performance and conduce, specifically unauthorized absence from unit 980122 to 980224. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

 980309:  NJP for violation of UCMJ, Article 86: UA 1300, 980122 – 0730, 980224.
 Awarded forfeiture of $450.00 per month for 2 months, 60 days restriction. Not appealed.
         

980326:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions as evidenced by her documented series of minor disciplinary infractions reflecting poor performance.
980327:          Applicant advised of her 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.

980330:  Commanding officer recommended discharge under other than honorable conditions due to misconduct, specifically minor disciplinary conditions.. The factual basis for this recommendation was the 3 NJP’s for minor disciplinary infractions while attached to the command only 5 months.

980407:  SJA review determined the case sufficient in law and fact.

980414:  GCMCA [Commander, MCB Camp Lejeune, N.C.] directed the applicant's discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 980424 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).

The applicant’s counsel alleges that the discharge was excessive for her misconduct and that she signed her right away for counsel. The Board found that the applicant did in fact waive her right to counsel, her specific words being “I do not wish to see a lawyer”, which was her right. The Board further found that within a five month period, the applicant was UA two times for a total of 33 days and was declared a deserter for an additional 33 days, for a total of 66 days UA. Clearly this is not the type of conduct that would warrant a discharge. The applicant knowingly violated the UCMJ. Relief denied.
Pertinent Regulation/Law (at time of discharge)

 A. Paragraph 6210, MISCONDUCT , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 18 Aug 95 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 [e.g., Article 86, unauthorized absence for more than 30 days].
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 obtain a copy of DoD Directive 1332.28 by writing to:
                  DA Military Review Boards Agency
                  Management Information and Support Directorate
                  Armed Forces Reading Room
                  Washington, D.C. 20310-1809

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
                  Washington Navy Yard
                  720 Kennon St SE Rm 309
                  Washington, D.C. 20374-5023     


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