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USMC | DRB | 1999_Marine | MD99-00774
Original file (MD99-00774.rtf) Auto-classification: Denied


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

ex-PFC, USMC
Docket No. MD99-00774

Applicant’s Request
The application for discharge review, received 990512, requested that the characterization of service on the discharge is changed to honorable and the reason for the discharge is changed to Secretary's Authority or Convenience of the Government. The applicant requested a documentary record discharge review. The applicant listed DEPARTMENT OF VETERANS AFFAIRS as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000403. 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 – Pattern of misconduct (with admin discharge board), authority: MARCORSEPMAN Par. 6210.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.       My Article 15 record only indicated minor offenses. While these offenses should not have occurred they were not of such a severe nature that I should have been given a bad discharge. I had no court-martial conviction.
2.       There was no serious attempt to rehabilitate me. I was simply counseled to do better.
3.       I have been a good citizen since discharge as evidenced by the letters from my employers.

Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Letter from Department of Veterans Affairs
Employment reference letter from Treasure Chest Advertising Company, Inc
Character reference letter from Director of Human Rights Commission

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              None
         Inactive: USMCR(J)                820630 - 821031  COG

 Period of Service Under Review :
Date of Enlistment: 821101               Date of Discharge: 850319

 Length of Service (years, months, days):

         Active: 02 04 19
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 10                        AFQT: 49

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.81 (7)             Conduct: 3.5(7)

 Military Decorations: None

 Unit/Campaign/Service Awards: Pistol Sharpshooter Badge, Rifle Marksman Badge

Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/ Misconduct – Pattern of misconduct (with admin discharge board), authority: MARCORSEPMAN Par. 6210.3.

 Chronological Listing of Significant Service Events :

830915:  Counseled on relationships with foreign nations and destruction of government property due to his inability to control his emotions, also alcohol abuse, advised of rights.

831219:  Counseled for deficiencies in performance and conduct. [Lack of reliability and dependability] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued

840517:  NJP for violation of UCMJ, Article 92 (2 specs), Specification 1:Violate guard orders by taking contraband on post, to wit: cigarettes; Specification 2: Violate guard orders by smoking on his assigned post.
 Awarded forfeiture of $164.00 per month for 1 month, restriction and
extra duties for 7 days (suspended for 3 months). Not appealed.
840615:  Suspension of NJP imposed and suspended on 840515 for a period three months is hereby vacated and the punishment is ordered executed.

840619:  Counseled for deficiencies in performance and conduct. [Frequent involvement of a discreditable nature with military authorities as evidenced by two NJP's ] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued

840621:  NJP for violation of UCMJ, Article 92: Dereliction in the performance of his duties in that he failed to keep the "boom" lowered while there was not any vehicles passing through his post.
         Award: Restriction and extra duty for 7 days to run concurrently without suspension from duty (suspended for 3 months). Not appealed.

841115:  NJP for violation of UCMJ, Article 00: Disrespectful to Cpl M____ by saying to his, "Go To Hell".
         Award: Forfeiture of $334 per month for 2 months, restriction for 60 days without suspension from duty, reduction to E-2 (All punishments suspended for 6 months). Not appealed.

841127:  Suspension of NJP imposed and suspended on 841113 for a period six months is hereby vacated and the punishment is ordered executed.

841214:  Counseled for deficiencies in performance and conduct. [Your failure to take corrective action on your deficiencies previously cited directly reflects upon your complete lack of self-discipline. Your inability to control yourself is evidenced by your display of disrespect toward a superior commissioned officer on 841106. You have demonstrated an inimical attitude toward your spouse to which you admitted, and this requires me to caution you that such outbursts of hostility will no longer be tolerate].

850401:  NJP for violation of UCMJ, Article 00: Willfully disobeyed order from Sgt V_______ to help field day room.
         Award: Restriction and extra duty for 14 days without suspension from duty to run concurrently. Not appealed.

850401:  NJP for violation of UCMJ, Article 112a: Wrongfully use marijuana, a schedule control substance.
         Award: Forfeiture of $310 per month for 2 months, restriction and extra duty for 45 days without suspension from duty to run concurrently, reduction to E-1. Not appealed.

841228:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by three non-judicial punishments.
841228:          Applicant advised of his rights and having elected not to consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
841228:  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 respondent's established pattern of involvement of a discreditable nature with military authorities as evidenced by three non-judicial punishments

850122:  SJA review determined the case sufficient in law and fact, recommend disapproval of conditional waiver and reference to Administrative Board.

850123:  GCMCA [Commanding General] disapproved respondent's request for a Conditional Waiver and referred case to an Administrative Discharge Board for consideration and recommendation.

850301:  SJA review determined the case sufficient in law and fact, recommend other than honorable separation.

850304:  GCMCA [Commanding General] directed the applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

850306:  NAVDRUGLAB SAN DIEGO CA urinalysis report indicates applicant tested positive for THC.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 850319 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).

In the applicant’s issue 1, the Board found the applicant’s claim that his offenses were minor in nature to be inaccurate. The Board noted several of the applicant’s offenses, especially the wrongful use of marijuana, could have warranted a punitive discharge under the Manual for Courts-Martial and fully warranted discharge.

The applicant’s conduct, which resulted in four(4) nonjudicial punishments, is evidence of his disregard for military discipline, thus warranting administrative separation by reason of misconduct. The applicant did not provide any evidence to show the counseling he received was not sufficiently thorough or that the counseling sessions failed to address the possible consequences of his actions.

The applicant’s post-service conduct and employment record are commendable and indicate his desire to be a good citizen. However, they are not of such weight as to overcome the seriousness of the offenses which formed the basis of the discharge. Relief is denied.

 Pertinent Regulation/Law (at time of discharge)

 A. Paragraph 6210 MISCONDUCT , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16C), Change 2, effective 15 Apr 84 until 28 Jul 87.

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.

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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