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USMC | DRB | 1999_Marine | MD99-00951
Original file (MD99-00951.rtf) Auto-classification: Denied


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

ex-PVT, USMC
Docket No. MD99-00951

Applicant’s Request
The application for discharge review, received 990707, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a documentary record discharge review. The applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000310. 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.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. I have been discriminated against and have served my country Faithfully. I gave 3 year and 8 months of my precious years of life to serve my country and have been denied (robbed) of the benefits thereof.
 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214
Ltr from applicant - one page undated
College transcript
Ltr from applicant – 9 pages undated
Copy of check no. 41870079
Ltr from Sgt M_ dtd 3 Aug 98
Ltr from applicant – 1 page undated
Ltr from Pastor F_ dtd Jun 26, 1998
Ltr from Mr O_ undated
Applicant’s appeal dtd 31Oct97
Ltr from Mr S_ Ph.D. dtd July 15, 1998
Ltr from Bethel College Faculty Mr C_ Ph.D. dtd June 30, 1998
Copy of applicant’s SAT scores dtd 6/28/97
Copy of LES dtd 1-31 Mar
Copy of certificate of physical achievement
Copy of certificate of training from Air Force dtd 16 Aug 95
Copy of accreditation dtd 18 Sep 97
Copy of certification dtd 21 Feb 96

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              000000 - 000000  HON
         Inactive: USMCR(J)                950126 - 950205  COG

 Period of Service Under Review :
Date of Enlistment: 950206               Date of Discharge: 981001

 Length of Service (years, months, days):

         Active: 03 05 12
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 95

 Highest Rank: LCPL

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.1 (10)             Conduct: 3.5 (10)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SSDR, LOA (2), COA

 Days of Unauthorized Absence: None

 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 :

960207:  Counseled for deficiencies in performance and conduct, specifically violation of Article 89 UCMJ, disrespect Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

960209:  NJP for violation of UCMJ, Article 128: On or about 0615, 9 Feb 96 assaulted LCPL C_ by striking him with a closed fist.
 Awarded forfeiture of $488.00 per month for 2 months, restriction and
extra duties for 45 days, reduction E-2. Appealed 960214.
960301:  NJP appeal denied.

960403:  Counseled for deficiencies in performance and conduct, specifically concerning insubordination/disrespect toward a senior Marine. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

961105:          Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 95.
         Specification: resisting apprehension on 960628;
         Charge II: violation of the UCMJ, Article 128.
         Specification 1: assaulted SgtM_ by striking him with closed fist on 960628;
         Specification 2: assaulted Sgt. K_ on 960628 by striking him with closed fist.
         Charge III: violation of the UCMJ, Article 134,
         Specification: disorderly on 960628 at Bldg. 571, MCAS Futenma
         Finding: to Charge I and the specification thereunder, guilty.
         To Charge II and the specifications thereunder, guilty.
         To Charge III and the specification thereunder, guilty
         Sentence: Reprimanded and 30 days confinement.  
CA action 961114: Sentence approved and ordered executed .
970903:  NJP for violation of UCMJ, Article 92: Failure to obey an order or regulation, to wit: failure to obey a lawful order given by MGySgt P_ to square away his room.
 Awarded extra duties for 30 days, reduction to E-2. Reduction suspended for 6 months. Not appealed.
971029:  NJP for violation of UCMJ, Article 91: insubordinate conduct towards NCO to wit: disrespectful language toward SNCO and NCO; violation of UCMJ Article 117: use of provoking speeches or gestures toward SSGT S_ and CPL W_; violation of UCMJ Article 86: UA on or about 2100, 971005 from appointed place of duty, to wit: weather office.
 Award: Forfeiture of one month’s pay, extra duty for 45 days, reduction to E-1. Extra duties, reduction and forfeiture of pay suspended for 6 months. Appealed.

 971205:  Appeal denied.

971029:  Reduction suspended 970903 is hereby vacated and ordered executed.

 980407:  NJP suspended on 971029 is hereby vacated and ordered executed.
980409:  NJP for violation of UCMJ, Article 91: Insubordinate conduct towards a SNCO, GySgt T_; violation of UCMJ Article 91: Insubordinate conduct towards an NCO, LCPL H_; violation of UCMJ Article 86: UA from 1115 to 1215 6 Apr 98 from appointed place of duty, to wit: phonewatch. Award: Forfeiture of $463 per month for 2 months, restriction and extra duty for 45 days. Restriction and extra duties suspended for 6 months. Not appealed.

980522:  Medical evaluation by a military psychiatrist concluded that the applicant would be at continuing risk to do harm to himself or others if retained in the military. Recommended appropriate precautions while in confinement.

         AXIS II: Narcissistic Personality Disorder
         AXIX III: Schizotypal Personality Features

980601:  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 2 page 11 entries, 4 NJP’s and one Summary Court Martial for assault, disrespect and insubordination and a psychological evaluation from a medical officer.

980601:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

980609:          Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
Administrative Discharge Board results missing from SRB.

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

980828:  GCMCA [Cdr., MCAB, Western Area] approved the recommendation of the Administrative Discharge Board and 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 981001 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 nothing in the applicant’s records, nor did the applicant submit any information that indicated that he was discriminated against. Relief denied.

The applicant further indicates that he was robbed of his benefits. The Board found that the applicant’s record of service indicates that the discharge issued was correct, that he was not robbed of his benefits. Rather, he was not qualified to receive these benefits. On 950207 the applicant acknowledged that he understood that he must receive an honorable discharge to use the MGIB. Relief denied.

 The following is provided for the applicant’s edification. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge (E). The applicant must be aware that there is no law or regulation which provides that an unfavorable discharge may be upgraded based solely on the passage of time, or good conduct in the civilian life subsequent to leaving the service. Normally, to permit relief, an error or injustice must have been found to have existed during the period of enlistment in question. Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review, may be considered by the NDRB. The applicant is reminded that he is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge. Representation at personal appearance hearing is highly recommended.




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 95, resisting apprehension & Article 128, assault].
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, DC 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, DC 20374-5023       


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