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USMC | DRB | 2001_Marine | MD01-00749
Original file (MD01-00749.rtf) Auto-classification: Denied


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


ex-PVT, USMC
Docket No. MD01-00749

Applicant’s Request
The application for discharge review, received 010503, 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.

Decision

A documentary discharge review was conducted in Washington, D.C. on 011018. 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 – Minor disciplinary infractions (administrative discharge board required but waived), authority: MARCORSEPMAN Par. 6210.2.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION


Issues

 Dear DRB: The following issues are reasons I believe my discharge should be changed to honorable, if you disagree, please explain in detail why you disagree. The presumption that might normally permit you to assume that the service acted correctly in characterizing my service as less than honorable does not apply to my case because of the evidence I am submitting.
1. I have been a good citizen.
2. My record of NJP's indicates only isolated and minor offenses.
 3. My ability to serve was impaired by my deprived background.
Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copies of DD Form 214 (2)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              None
          Inactive: USMCR(J)                890502 - 890521  COG
Period of Service Under Review :
Date of Enlistment: 890522               Date of Discharge: 910104

 Length of Service (years, months, days):
         Active: 01 07 13
          Inactive: None
Age at Entry: 19                          Years Contracted: 4

Education Level: 12                        AFQT: 46
Highest Rank: PFC

 Final Enlisted Performance Evaluation Averages (number of marks):
Proficiency: 3.5 (4)              Conduct: 3.5 (4)

 Military Decorations: None
Unit/Campaign/Service Awards: Rifle Expert Badge, SSDR

Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – Minor disciplinary infractions (administrative discharge board required but waived), authority: MARCORSEPMAN Par. 6210.2.

 Chronological Listing of Significant Service Events :

900323:  NJP for violation of UCMJ, Article 86: UA (AWOL) from 0715 to 1030, 900302, from appointed place of duty, to wit: K Company's Physical Readiness Test (PRT); violation of UCMJ, Article 91: At 0730, 900302, having received a lawful order from HM3 T. M___, to get his gear and catch up with the rest of the company.
 Awarded forfeiture of $189.00 per month for 1 month (suspended for 6 months), restriction and
extra duties for 14 days. Not appealed.
900610:  Forfeiture of $189.00 pay per month for 1 month, imposed and suspended on 900323 is hereby vacated effective 900610.
900610:  NJP for violation of UCMJ, Article 86: UA 0530, 900604 to 0430, 900605 from Co K 3dBn, 3dMar.
         Award: Forfeiture of $168.00 per month for 1 month, restriction and extra duty for 14 days. Not appealed.
900621:  Counseled for deficiencies in performance and conduct. [NJP of 900610 for Article 86 UA]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
900709:  NJP for violation of UCMJ, Article 86: UA 1115-1300, 900612, from Mess deck onboard USS San Bernardino, violation of UCMJ Article 91: On board USS San Bernardino, approx 1300, 900612, willfully disobeyed order from Cpl M.J.W_____, to return to the Mess deck which he was assigned.
         Award: Forfeiture of $362.00 per month for 2 months, restriction and extra duty for 45 days, reduction to E-1. Not appealed.
900717:  Counseled for deficiencies in performance and conduct. [Subpar performance, cooperation with NCO'S and frequent violation of UCMJ]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
900910:  Psychiatric evaluation indicates applicant was diagnosed with a personality disorder which renders him unsuitable for the military.
901120:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions.
901120:          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.
901124:  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 three non judicial punishments and two adverse counseling/page 11 entries. Additionally, on 900910 the respondent was found to be unsuited for military service by reason of personality disorder. His psychological problems coupled with his pattern of misconduct serve to strengthen his detriment to this battalion.

901206:  SJA review determined the case sufficient in law and fact.
901208:  GCMCA [Commanding General, 1 st MARDIV] 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 910104 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).
Issue 1. T here is no law, or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time, or good conduct in civilian life, subsequent to leaving the service. However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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. 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. Evidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs, are examples of verifiable documents that should have been provided to receive consideration for relief, based on post-service conduct. The applicant did not provide sufficient documentation to warrant an upgrade to his discharge. 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. Legal representation at a personal appearance hearing is highly recommended but not required. Relief denied.

Issue 2. The applicant’s record of NJPs forms the basis of his discharge. 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 award of nonjudicial punishment (NJP) for offenses triable by court-martial on three occasions 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.
Issue 3. The applicant stated his ability to serve was impaired by his deprived background. The Board found that the applicant’s age, education level, and test scores qualified him for enlistment. While he may feel that his background 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.


Pertinent Regulation/Law (at time of discharge)
A. Paragraph 6210, Misconduct, of the Marine Corps Separation and Retirement Manual, ( MCO P1900.16D), effective 27 Jun 89 until 17 Aug 95.

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 86 absent from place of duty, and Article 91, failure to obey orders.
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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