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USMC | DRB | 2000_Marine | MD00-00415
Original file (MD00-00415.rtf) Auto-classification: Denied


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

ex-PFC, USMC
Docket No. MD00-00415

Applicant’s Request
The application for discharge review, received 000214, requested that the characterization of service on the discharge be changed to Honorable. The applicant requested a documentary record discharge review. The applicant listed AMERICAN LEGION as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000928. 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. 6210.2.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. (EQUITY ISSUE) His violation of the UCMJ, notwithstanding, this former member opines that this otherwise creditable service record is sufficient to warrant release under honorable conditions.

2. (EQUITY ISSUE) This former member further requests that the Board include provisions of SECNAVISNT 5420.174C., enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of his application.

Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              None
         Inactive: USMCR(J)                950707 - 950718  COG

 Period of Service Under Review :
Date of Enlistment: 950719               Date of Discharge: 990517

 Length of Service (years, months, days):

         Active: 03 09 29
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

Education Level: 12                        AFQT: 31

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.06 (11)            Conduct: 3.9(11)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SSDR

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. 6210.2.

 Chronological Listing of Significant Service Events :

970205:  NJP for violation of UCMJ, Article 92 (2 Specs): Disobeyed a order on or about 970201 from ADNCO to wit: SNM was told to go to his room and ignored the order, violation of UCMJ Article 128: Assault PFC M____ by punching and kicking him in the head on or about 970201, violation of UCMJ Article 91: Disrespectful in language toward Cpl T____, a noncommissioned officer on or about 970201.
         Award: Forfeiture of $500.00 per month for 1 month, restriction and extra duty for 30 days, reduction to E-2 (suspended for 6 months). Not appealed.

970211:  NJP imposed and suspended on 970205 for a period of 6 months is hereby vacated and the punishment is ordered executed.

970218:  Counseled for deficiencies in performance and conduct. [Minor disciplinary actions (documented series of at least 3 minor disciplinary infractions) during current enlistment which have/would have been disciplined under Article 15, NJP Pattern of Misconduct (pattern of more serious infractions) or instances of conduct prejudicial to good order and discipline within one enlistment] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

970220:  NJP for violation of UCMJ, Article 121: Steal property of Cpl M____ of a value of $405.00 on or about 961213; violation of UCMJ, Article 107: With intent to deceive, make to military investigators, and official statement, to wit: denied stealing any money which was totally false. .
         Award: Forfeiture of $450.00 per month for 2 month, restriction and extra duty for 30 days, reduction to E-1. Not appealed.
981116:  Counseled for deficiencies in performance and conduct. [Civilian DUI with a BAC of .08% during the period of 980917 at a time approximately 2000.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

990302:  NJP for violation of UCMJ, Article 86: UA from work section at 1200, 990228, UA from formation at 0630, 990301.
         Award: Extra duty for 45 days, reduction to E-2. Not appealed.
990324:  Applicant notified of intended recommendation for discharge under Other Than Honorable conditions by reason of misconduct due to Minor disciplinary infractions.
990324:          Applicant advised of his 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.

990330:  Commanding officer recommended discharge under Other Than Honorable conditions by reason of misconduct due to Minor disciplinary infractions. The factual basis for this recommendation was documented series of at least 3 minor disciplinary infractions.

990601:  SJA review determined the case sufficient in law and fact.

990601:  GCMCA [Commanding General, I MEF] 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 990517 under Other Than Honorable conditions for misconduct due to Minor disciplinary infractions (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 determined this issue is without merit. The applicant states that his otherwise creditable service is sufficient to warrant an Honorable discharge. The Board was able to identify only 17 months of the applicant’s service (less than half) that was without misconduct. The remaining 29 months of service were marked with repeated counseling and three NJPs. Several of his violations of the UCMJ were court martial offenses but the applicant’s command chose administrative separation instead. The discharge was proper and equitable. Relief denied.

In the applicant’s issue 2, the Board determined this issue is without merit. The applicant states his post-service conduct was sufficient to warrant an Honorable discharge. The applicant failed to provide any documentation to support his claim of post-service to warrant upgrading his discharge. 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 95until 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 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 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      

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