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USMC | DRB | 2000_Marine | MD00-00766
Original file (MD00-00766.rtf) Auto-classification: Denied


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

ex-PFC, USMC
Docket No. MD00-00766

Applicant’s Request
The application for discharge review, received 000524, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a documentary record discharge review. The applicant listed the Disabled American Veterans as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020101. 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: GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: MARCORSEPMAN Par. 6210.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1. There is an issue concerning my first NJP. That I think I should not have ended up as a NJP. The situation was one of my Sgt. said that I was U.A. for duty. When in fact the reason was because I did not come up to the Sgt. and tell him that I was in the motor pool. See I work at a motor pool, and daily they have marines or duty with dispatches. They are the marine who send out the vehicles. I had duty on a Saturday. I came in early about 0515 for work, I duty time was 0700. So what I did was pull up to the dispatchers shack where the dispatcher sleep and also the duty driver. I parked my car "in front" of the window, and went to sleep in the car. Then around 0745 the marine I was supposed to relive woke me up a said that I needed to get up and that I was late for work. He also told me that the Sgt. told him to wake me up. The point I am trying to make is if they knew I was out there why did they let me sleep for so long. That is why I think that I should not be out of the Marine Corps, and also have a honorable or would have been getting a honorable discharge.

2. After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of the evidence assembled for review, we continue to support the corrective action as requested by the FSM of an upgrade of his General, Under Honorable Conditions to Honorable. Detailed on the application, the FSM relates that the no judicial punishment he received was unjust, and that it is due to this unjust punishment that he received a General discharge. For the sake of brevity we refer the Board to those statements for review and determination. We ask for the Boards careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision. These issues do not supersede any issues previously submitted by the applicant.

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: None
         Inactive: USMCR(J)                951031 - 960630  COG

 Period of Service Under Review :
Date of Enlistment: 960701               Date of Discharge: 990910

 Length of Service (years, months, days):

         Active: 03 02 10
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

 Education Level: 12                        AFQT: 40

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.0 (7)                       Conduct: 3.9 (7)

 Military Decorations: None

 Unit/Campaign/Service Awards: MUC, MM

 Days of Unauthorized Absence: None

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: MARCORSEPMAN Par. 6210.3.

 Chronological Listing of Significant Service Events :

970515:  Counseled for deficiencies in performance and conduct. [On 970507 SNM was assigned to drive for two commitments. SNM was aware of this and it was passed verbally and written. He completed the first run. Then he went to his room for chow and went to sleep. He failed to show up for his second run. SNM was totally negligent and irresponsible Another Marine had to cover his run. If this commitment was missed, it would have brought great discredit to the Motor Transport Section.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued
971016:  NJP for violation of UCMJ, Article 86:
 Specification: Absent from appointed place of duty 0700-0745, to wit: Motor Pool, MarBks.
Awarded forfeiture of $524.00 per month for 1 month, restriction for 60 days. Restriction for 30 days suspended for 6 months. Not appealed.
971020:  Counseled for deficiencies in performance and conduct. [Since his arrival in December 1996 he has had numerous Article 86 violations of the UCMJ. The many counselings he has received have had little to no effect and he continues to arrive late for duty. In many instances he has had to have other Marines fill in for him. SNM appears to not understand he is required to arrive at work on time everyday nor does he seem at all remorseful for his tardiness. SNM recently received Company level office hours which resulted in sixty days restriction and loss of half months pay for one month. Thirty days of the restriction was suspended for six months provided he does not have any further problems. SNM is aware that if he continues to violate the UCMJ he will be subject to more serious judicial proceedings and punishment.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
980326:  Counseled for deficiencies in performance and conduct. [Marine Corps policy against hazing and it's effects upon morale and good order and discipline. Hazing is defined as coercing other to participate in cruel, humiliating, unsafe, or meaningless acts. The "right of passage" into out Corps is the day of graduation from basic training when he/she is called a "Marine" for the first time and there need to be no others.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
980610:  NJP for violation of UCMJ, Article 91:
 Specification: Willfully disobeyed the order of Cpl to square away his extra gear locker.
Violation of UCMJ, Article 117:
Specification: Wrongfully used provoking words on 7May98, to wit: "Get out of my face, I am tired of you treating me like a little kid".
Violation of UCMJ, Article 134:
Specification: Verbally threaten Cpl on 1615, 7May98, to wit: "I am going to kill you".
Awarded forfeiture of $539.00 per month for 2 months, restriction for 60 days. Forfeiture suspended for 6 months. Not appealed.
990708:  NJP for violation of UCMJ, Article 86:
 Specification: Fail to go at the time prescribed to motor pool 0450, 4May99.
Awarded forfeiture of $500.00 per month for 2 months, restriction for 30 days, reduction to PFC. Forfeiture suspended for 6 months. Not appealed.
990723:  Applicant notified of intended recommendation for discharge general (under honorable conditions) by reason of misconduct due to a pattern of misconduct.
990804:  Commanding officer recommended discharge general (under honorable conditions) by reason of misconduct due to a pattern of misconduct. The factual basis for this recommendation was your two Company level NJP's and 1 Battalion level NJP.

990824:          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.

990901:  SJA review determined the case sufficient in law and fact.

990903:  GCMCA [Commander, Marine Corps Base] directed the applicant's discharge general (under 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 990910 general (under 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 disagreed that the applicant’s supervisory chain of command was responsible to individually hold reveille on the applicant to ensure his timely reporting for duty. Further, the Board found the applicant’s assertion that his discharge was determined by his first NJP to be not accurate. The record clearly reflects a pattern of misconduct, represented by three Non-judicial Punishments and three adverse counseling entries. This pattern of misconduct could have resulted in a discharge characterized as under other than honorable conditions. Relief denied.

In the DAV issue 2, t he applicant's case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency. The NDRB found the applicant’s service record devoid of any mitigating or extenuating factors sufficient to offset the seriousness of the offenses for which the discharge was awarded. In fact, the Board found the applicant had been afforded thorough and detailed counseling on his deficiencies, beyond that normally provided, and was offered many avenues to correct his pattern of tardiness and failure to report for duty. Relief therefore, is denied.

The applicant is reminded that he remains eligible for a personal appearance hearing provided that an application is received within 15 years from the date of discharge.

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. 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.

C. 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.

D. 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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