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USMC | DRB | 2000_Marine | MD00-00736
Original file (MD00-00736.rtf) Auto-classification: Denied


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

ex-PVT, USMC
Docket No. MD00-00736

Applicant’s Request
The application for discharge review, received 000517, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a personal appearance hearing discharge review before the Board in the Washington National Capital Region. The applicant listed Veterans of Foreign Wars as his representative on the DD Form 293.

Decision

A personal appearance hearing discharge review was conducted in Washington, DC on 010910. 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
A documentary discharge review was conducted in Washington, D.C. on XXXXXX. 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.

 If appropriate add the following:
The NDRB did note an administrative error on the original DD Form 214. Block 28, Narrative Reason for Separation should read: “_____________” vice “__________”. The original DD Form 214 should be corrected or reissued as appropriate.







THIS IS THE CORRECT SHELL FOR A PATTERN OF MISCONDUCT, EFFECTIVE 18 AUG 95 UNTIL PRESENT.

For SPD Code’s GKA1 and HKA1 the Narrative Reason for Separation is “MISCONDUCT” (Listed on page A-6 of MCO P1900.16E, effective 18 Aug 95)

 SPD               English Description

GKA1              Pattern of misconduct (with board)
 HKA1              Pattern of misconduct (board required but waived)

Characterization of service is written “HONORABLE”, “ GENERAL ( UNDER HONORABLE CONDITIONS)” or “UNDER OTHER THAN HONORABLE CONDITIONS” ( See page B-7 of MCO P1900.16E, effective 18 Aug 95)




PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.       Punishment was excessively harsh for offenses.
2.       Upgrade discharge based on clemency.

Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Official college undergraduate transcript from Bethel College dated 6 Oct 1999.
California Basic Educational Skills Test dated 2 Oct 1999.
Letter of reference from Franklin Reinforcing Steel Co., Inc. dated 10 July 2000.
Character reference from Pastor of Praise Christian Center dated 14 Nov 1999.
Character reference from Bethel College dated 5 Nov 1999.
Letter of reference from General Landscape Services (no date).
 Letter of reference from Conserv Art Associates dated 5 Mar 1999.
Character reference dated 7 July 2000.
Previously submitted documentation from earlier board.

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              None
         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: 23                          Years Contracted: 4

Education Level: 14               AFQT: 95

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.10 (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. [Violation of UCMJ Article 89, 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, 960209 assaulted LCpl C___ by striking him with a closed fist.
         Award: Forfeiture of $488.00 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2. Appealed 960214.

960301:  NJP appeal denied.
960403:  Counseled for deficiencies in performance and conduct. [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 Sgt M____ by striking him with closed fist on 960628; Specification 2: Assaulted Sgt K___ by striking him with closed fist on 960628. Charge III: violation of the UCMJ, Article 134, Specification: Disorderly on 960628 at Bldg. 571, MCAS Futenma.
Finding: to Charge I and specification thereunder, guilty. To Charge II and the specifications thereunder, guilty. To Charge III and the specifications thereunder, guilty.
Sentence: Reprimanded and 30 days confinement.
CA (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.
         Award: Extra duty for 30 days, reduction to E-2 (suspended for 6 months). Not appealed.

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

971029:  NJP for violation of UCMJ, Article 91: Insubordinate conduct toward NCO to wit: Disrespectful in language toward SNCO and NCO; violation of UCMJ Article 117: Using provoking speeches and 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 1 months pay (suspended for 6 months), extra duty for 45 days (suspended for 6 months), reduction to E-1 (suspended for 6 months). Appealed.

971205:  NJP Appeal denied.
980407:  NJP suspended on 971029 is hereby vacated and ordered executed.

980409:  NJP for violation of UCMJ, Article 91: Insubordinate conduct toward a SNCO, GySgt T___ , violation of UCMJ, Article 91: Insubordinate conduct toward an NCO, LCPL H____; violation of UCMJ Article 86: UA from 1115 to 1215 980406 from appointed place of duty to wit: Phonewatch.
         Award: Forfeiture of $463.00 pay per month for 2 months, restriction and extra duty for 45 days (suspended for 6 months). Not appealed.

980522:  Applicant admitted to medical for attempted suicide. 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.
         AXIS II: Narcissistic Personality Disorder
         AXIS III: Schizotypal Personality Disorder

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. The factual basis for this recommendation was your 2 page 11 entries, four NJP's, Summary Court Martial for assault disrespect and insubordination and a psychological evaluation from a medical officer.

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 [Commander, MCAB, Western Area] approved the recommendation of the Administrative Discharge Board and directed applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.
000310:  NDRB documentary record review Docket Number MD99-00951 conducted. Determination: discharge proper and equitable; relief not warranted.

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 response to applicant’s issue 1, the NDRB recognizes that serving in the Marine Corps is very challenging. Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country. It must be noted that most Marines serve honorably and well and therefore earn honorable discharges. The applicant had two formal counseling, four NJP’s and a Summary Court Martial in a two year period. Marines who receive honorable discharge do not have such a long list of serious UCMJ violations. In fairness to those Marines, commanders and separation authorities are tasked to ensure that undeserving Marines receive no higher characterization than is due. The applicant stated he tried to serve to the best of his ability, but was unable to do so. While the NDRB respects the fact that the applicant tried, his service is equitably characterized as being performed under other than honorable conditions. Relief denied.

In response to applicant’s issue 2, the Board applauds the applicant’s efforts to better his life by completing his degree in Christian Ministries and by substitute teaching for juvenile delinquents in California. The Board also took into account the character reference submitted by the applicant and documents previously submitted to the applicant’s first discharge review. The Board determined that the applicant’s post service accomplishments were not sufficient documentation of good character and conduct. The Board could not exculpate the applicant from his misconduct of record based on the documents submitted. Relief denied.

This decision exhausts the applicant’s opportunity for review by the NDRB. The applicant remains eligible to appeal for upgrade the Board for Correction of Naval Records.

 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 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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