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USMC | DRB | 2001_Marine | MD01-00291
Original file (MD01-00291.rtf) Auto-classification: Denied


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


ex-PFC, USMC
Docket No. MD01-00291

Applicant’s Request
The application for discharge review, received 010112, 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. Subsequent to the application, the applicant obtained representation by American Legion.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010808. 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. (Equity Issue) This former member opines that the character of his discharge is too harsh because there were extenuating factors involved in his misconduct that his command failed to consider due of their general mistreatment of the junior enlisted Marines. On this basis he avers that recharacterization of service is warranted.

2. (Equity Issue) This former member further requests that the Board include provisions of SECNAVINST 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:
Four photographs
Statement from applicant, undated
 Notes from applicant
 Note from applicant
Letter from applicant
 Copy of statement of character dated October 7, 1997
Copy of statement of character dated October 6, 1997
Copy of statement of character dated October 7, 1997
Statement from Pvt D_ R_ R_
Statement from applicant dated December 12, 1997
 Statement from M_ A_ H_ dated December 22, 1997
 Statement from Cpl L_ K_ H_ dated December 23, 1997
 Letter to Commanding General from Pvt S_ dated December 22, 1997
 Statement from applicant
Four pages from applicant's service record
 Two pages from MCO 1700.23E
 Five pages from MCO P1900.16E
Copy of Commandant's Statement on Equal Opportunity
 Letter to member of House of Representatives dated September 10, 1999
 Letter to member of House of Representatives dated January 9, 2001
Copy of DD Form 149
 Copy of DD Form 214 (Member 1)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
          Inactive: USMCR(J)                950301 - 950306  COG
Period of Service Under Review :
Date of Enlistment: 950307               Date of Discharge: 971231

 Length of Service (years, months, days):
         Active: 02 09 25
          Inactive: None
Age at Entry: 19                          Years Contracted: 4

 Education Level: 12                        AFQT: 49
Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):
Proficiency: 4.2 (7)                       Conduct: 3.7 (7)

 Military Decorations: None
Unit/Campaign/Service Awards: NDSM

 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 :

950905:  NJP for violation of UCMJ, Article 128:
 Specification: Assault Private by striking him in the face with his hand on 0200, 2Sep95.
 Awarded restriction and extra duties for 7 days. No indication of appeal in service record.
950906:  Counseled for deficiencies in performance and conduct. [NJP held on 5Sep95]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
960223:  NJP for violation of UCMJ, Article 134:
 Specification: Disorderly conduct which was of a nature to bring discredit upon the armed forces, to wit: verbal altercation and struck LCpl R_ in the face with a closed fist on 0130, 4Feb96.
 Awarded forfeiture of $228.00 per month for 1 month, restriction and extra duties for 14 days. Forfeiture suspended for 6 months. No indication of appeal in service record.
961011:  NJP for violation of UCMJ, Article 92:
 Specification: Violate a lawful order on 24Sep 96, to wit: female visitor in room after 2200.
 Awarded forfeiture of $237.00 per month for 1 month, restriction and extra duties for 14 days. Restriction and extra duty suspended for 6 months. Not appealed.
970313:  NJP for violation of UCMJ, Article 91 (3 specs):
 Specification 1: Failure to obey lawful order on 1900, 20Feb97, to wit: field day room.
 Specification 2: Disrespectful toward Corporal on 1900, 20Feb97, to wit: by saying in a loud voice: "The reason I am not cleaning my room is that my fucking roommate is not back from school with fucking cleaning supplies and I am not fucking cleaning until he gets back.
Specification 3: Disrespectful toward Corporal on 1900, 20Feb97, to wit: by saying to him "I don't care".
Awarded forfeiture of $505.00 per month for 2 months, correctional custody for 30 days. Forfeiture suspended for 6 months. Not appealed.
970815:  Vacate suspended forfeiture awarded at NJP of 13Mar97.

 970815:  NJP for violation of UCMJ, Article 92:
 Specification 1: Fail to obey a lawful order, to wit: driving out of bounds on forty-eight hour liberty on 4Jul97.
 Awarded restriction for 14 days. Not appealed.
970815:  Counseled for deficiencies in performance and conduct. [Failure to obey a lawful order, BnO 1050.4T, by driving out of bounds on forty-eight hour liberty]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

971124:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.
971201:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
971201:  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 past record of misconduct, i.e. Company NJP on 950905 for assaulting another Marine by striking him in the face with your hand; Company NJP on 960223 for having a verbal altercation in which you struck a Marine in the face with a closed fist; Company NJP on 961017 for having a female visitor in your room after 2200, Battalion NJP for disobeying Cpl B_ when you were told by Cpl B_ to field day your room, and two counts of being disrespectful in language towards Cpl B_; and Company NJP on 970815 for driving out of bounds during forty-eight hour liberty.

971218:  Applicant waived right to an Administrative Discharge Board.

971229:  SJA review determined the case sufficient in law and fact.

 971229:  GCMCA [Commanding General, 2d Force Service Support Group] 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 971231 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).
Issue 1. The Board found that the supporting documentation which alleged the chain of command mistreated the applicant did not mitigate the applicant’s willful and frequent infractions of military discipline. A pattern of misconduct for a Marine does not necessarily equate to illegal civilian activity. A Marine may also be separated for a pattern of minor infractions, which was the applicant’s case. The applicant’s chain of command could have processed the applicant for separation in July 1996, after the applicant’s third non-judicial punishment (NJP) offense. Instead the command only began separation proceedings after the applicant’s fifth NJP coupled with another disciplinary infraction of a nature which could have resulted in additional non-judicial punishment. In each of the five non-judicial punishments that the applicant accepted, he could have chosen to execute his right to a trial by court martial if he believed his company chain of command was prejudiced against him. Further, there is nothing in the applicant’s medical records that indicates he was abused by the Marine Corps or that his decisions to violate orders and regulations was exacerbated by his medical condition. The NDRB does not consider the circumstances surrounding the applicant’s stated condition to be of sufficient nature to exculpate the applicant’s misconduct. The NDRB does not determine physical disability, dental care and MGIB benefits. The applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for an honorable characterization of service. The applicant, after consulting with legal counsel, waived his right to contest the characterization of service at an administrative hearing while being processed for discharge in 1997. Under Other Than Honorable conditions most clearly describes the applicant’s characterization of service. No relief is granted.

Issue 2. The NDRB is authorized to consider 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. However, there is no law or regulation that 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 be found to have existed during the period of enlistment in question. No such error or injustice is evident in the applicant’s service record. In determining whether a case merits a change based on post-service conduct, the NDRB considers the length of time since discharge, the applicant's record of community service, employment, conduct, educational achievements, and family relationships. Verifiable proof of any post-service accomplishments must be provided in order for the applicant to claim post-service conduct and behavior as a reason to upgrade a less than Honorable discharge. The applicant's efforts need to be more encompassing than those provided. The applicant should have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, and certification of non-involvement with civil authorities in order for consideration for relief based on post-service conduct. At this time the applicant has not provided sufficient documentation of good character and conduct. Therefore no relief will be granted. He is reminded that he remains eligible for a personal appearance hearing provided an application is received, at the NDRB, within 15 years from the date of his discharge. The applicant can provide additional documentation to support any claims of post-service accomplishments at that time. Representation at a personal appearance hearing is highly recommended but not required.

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 91, insubordinate conduct toward a noncommissioned officer; Article 92, failure to obey lawful orders; Article 128, simple assault; and Article 134, disorderly conduct.
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 “ afls10.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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