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USMC | DRB | 2001_Marine | MD01-00419
Original file (MD01-00419.rtf) Auto-classification: Denied


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

ex-PVT, USMC
Docket No. MD01-00419

Applicant’s Request
The application for discharge review, received 010213, requested that the characterization of service on the discharge be changed to general/under honorable conditions. 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 010822. 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. My average proficiency & conduct rating were good.

2. I have been a good citizen since discharge.

3. My ability to serve was impaired by my youth & immaturity.

4. I had applied for a compassionate reassignment but was told to forget.

5. I feel that it is an injustice for me to suffer the adverse consequences of a bad discharge.

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: USMC              None
         Inactive: USMCR(J)                950714 - 960527  COG

 Period of Service Under Review :
Date of Enlistment: 960528               Date of Discharge: 980529

 Length of Service (years, months, days):

         Active: 02 00 02
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 59

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.8 (7)              Conduct: 3.7(7)

 Military Decorations: None

 Unit/Campaign/Service Awards: Rifle Marksman Badge, MUC

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 :

970630:  Counseled for deficiencies in performance and conduct. [Failure to be at appointed place of duty; specifically on or about 0730, 970520 without authority, you absented yourself from your unit and did remain so absent until 0730, 970522]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

970801:  NJP for violation of UCMJ, Article 121: In that SNM knowingly provided LCpl F_____ A. B____ with the telephone security code belonging to LCpl M____ E. ____, LCpl O____, and PFC T____NJ. E_____ which resulted in unauthorized long distance calls to Iwakuni, Japan on 970423, 970424, 970521 and 970722, in the amount of $566.00, violation of UCMJ Article 86: UA (AWOL) from 0500, 970731 to 0730, 970731.
         Award: Forfeiture of $300.00 per month for 2 months (suspended for 6 months), restriction and extra duty for 45 days, reduction to E-2. Not appealed.

971210:  Counseled for deficiencies in performance and conduct. [My perpetual tardiness and lack of professionalism]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued
980313:  NJP for violation of UCMJ, Article 86: Did absent himself from the place of duty prescribed to him by GySgt F___-- W. M____, on 980207 at 0745 to 1100.
         Award: Forfeiture of $463.00 per month for 2 months (suspended for 6 months), restriction for 30 days, extra duty for 15 days, reduction to E-1 (suspended for 6 months). Not appealed.

980316:  NJP imposed and suspended on 980313 for a period of 6 months is hereby vacated and the punishment is ordered executed.

980316:  To Confinement.

980318:  Summary Court-Martial.
         Charge I: Violation of the UCMJ, Article 86: UA on 980316 Bks 1395 MCAS Iwakuni, JA; Charge II: violation of the UCMJ, Article 134: Restriction breaking Bks 1395 MCAS Iwakuni, JA.
         Finding: to Charge I and II, and the specifications thereunder, guilty.
         Sentence: Confinement for 30 days, forfeiture of $617.00 pay per month for 1 month.
         CA action 980318: Sentence approved and ordered executed.

980331:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions and misconduct due to a pattern of misconduct.


980331:          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.

980401:  Commanding Officer, Marine Fighter Attack Squadron 115 recommended discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions and misconduct due to a pattern of misconduct. The factual basis for this recommendation are supported and evidenced in Service Record Book.

xxxxxx:  Commanding Officer. Marine Aircraft Group 12 concurring with the recommendation of Commanding Officer, Marine Fighter Attack Squadron 115 to discharge PVT G____ under other than honorable conditions by reason of misconduct due to minor disciplinary infractions and misconduct due to a pattern of misconduct

980408:  From Confinement.

980506:  SJA review determined the case sufficient in law and fact. Further recommended that the pattern of misconduct be designated as the primary basis for separation.

980508:  GCMCA [Commander, 1 st Marine Aircraft Wing] directed the applicant's discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions and a pattern of misconduct. The primary basis for separation to appear on the Respondent's DD Form 214 is a pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 980529 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. Despite the applicant’s claim that he possessed good proficiency and conduct ratings, the Board found that his average rating of 3.8 / 3.7 constitute below average standards of proficiency and conduct. Even had the applicant possessed excellent proficiency and conduct ratings, such evidence would not have in itself warranted an upgrade to his characterization of service. Relief denied.

Issue 2. There is no law or regulation that provides for the upgrade of an unfavorable discharge based solely on the passage of time or good conduct in civilian life subsequent to leaving the Service. However, the Board is authorized to consider post-service factors in the recharacterization of a discharge (D). Those factors include, but are not limited to, the following: evidence of continuing educational pursuits (transcripts, diplomas, degrees, vocational-technical certificates), a verifiable employment record (Letter of Recommendation from boss), documentation of community service (letter from the activity/community group), certification of non-involvement with civil authorities (police records check) and proof of not using drugs (detoxification certificate, AA meeting attendance or letter documenting participation in the program). At this time, the applicant has not provided any documentation of good character and conduct. Therefore no relief will be granted. The applicant is encouraged to continue with his pursuits and is reminded that he is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge.

Issue 3. The Board found that the applicant’s age, education level, and test scores qualified him for enlistment. While he may feel that his immaturity and youth was a factor that contributed to his actions, the record clearly reflects his willful disregard for the requirements of military discipline and demonstrated that he was unfit for further service. The record is devoid of evidence that the applicant was not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.

Issue 4. There is no evidence in the official record, nor did the applicant provide any certifiable documentation that there was an impropriety during his enlistment concerning request for a compassionate reassignment. Relief denied.

Issue 5. When a Marine’s service has been honest and faithful, it is appropriate to characterize that service as honorable. Under other than honorable conditions is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record. T he applicant’s service was marred by a conviction during trial by a Summary Court-Martial, award of nonjudicial punishment (NJP) for offenses triable by court-martial on one occasion and adverse counseling entries on other occasions. 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 naval service, and falls short of that required for an honorable characterization of service. An upgrade to honorable would be inappropriate. It must be noted that most Marines serve honorably and well and therefore earn honorable discharges. In fairness to those Marines, commanders and separation authorities are tasked to ensure that undeserving Marines receive no higher characterization than is due. His service is equitably characterized as being performed under other than honorable conditions. The applicant was briefed upon the characterization of service recommended for separation by his command and waived his right to a hearing before an Administration Separation Board on 980331. Relief is not warranted.


 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 86, unauthorized absence for more than 30 days].
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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