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USMC | DRB | 2001_Marine | MD01-00750
Original file (MD01-00750.rtf) Auto-classification: Denied


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

ex-PFC, USMC
Docket No. MD01-00750

Applicant’s Request
The application for discharge review, received 010507, requested that the characterization of service on the discharge be changed to honorable or general/under honorable conditions. The applicant requested a documentary record discharge review. The applicant listed Veterans of Foreign Wars as his 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-Pattern of misconduct (with administrative discharge board), authority: MARCORSEPMAN Par. 6210.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1. We request the record be given full consideration for the character of discharge. The applicant had served outstanding in combat and is a decorated veteran of the Persian Gulf War.

We refer this case to the Board for their careful and compassionate consideration and request the applicant's discharge be reviewed for Clemency due to post service.

Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214
Copy of Enlistment /Reenlistment Documents (5 pgs)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              850619 - 881215  HON
         Inactive: USMCR(J)                850223 - 850618  COG

 Period of Service Under Review :
Date of Enlistment: 881216               Date of Discharge: 920414

 Length of Service (years, months, days):

         Active: 03 04 00
         Inactive: None

 Age at Entry: 22                          Years Contracted: 4

Education Level: 12                        AFQT: 37

 Highest Rank: Cpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.8 (12)                      Conduct: 3.8 (12)

 Military Decorations: None

 Unit/Campaign/Service Awards: Rifle Marksmanship Badge, SSDRw1*, GCM, CAR, NDSM, SASMw2*, Meritorious Mast, KLM

 Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct-Pattern of misconduct (with administrative discharge board), authority: MARCORSEPMAN Par. 6210.3.

 Chronological Listing of Significant Service Events :

881216:  Reenlisted at 2D SupBn 2D FSSG (REIN) FMFLant Camp Lejeune North Carolina for 4 years.

890123:  NJP for violation of UCMJ, Article 134: Between 871217-880928 did obtain under false pretenses telephone services which belonged to the U.S. Government, to wit: Base Telephone.
         Award: Forfeiture of $200.00 per month for 1 month. Not appealed.

890324:  NJP for violation of UCMJ, Article 86: UA (AWOL) at 2030, 890304, violation of UCMJ, Article 86: UA (AWOL) from appointed place of duty at 0700, 890308.
         Award: Forfeiture of $200.00 per month for 2 month (forfeiture of $200.00 per month for 1 month suspended for 6 months). Not appealed.

890427:  Counseled for deficiencies in performance and conduct. [Frequent involvement with military authorities. You have received 2 NJP's during this enlistment]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

900305:  NJP for violation of UCMJ, Article 86: Did on or about 1300, 900209, without authority fail to go at the time prescribed to his appointed place of duty, to wit: Btry formation located at the grinder adjacent to bldg #162, violation of UCMJ, Article 91: Was disrespectful toward GySgt B____ on or about 1330, 900216 by deporting himself in a belligerent manners, violation of UCMJ, Article 91: Having received a lawful order from GySgt B_____ to "get back here" did, on or about 1300, 900216 willfully disobey the same, violation of UCMJ, Article 92: Having knowledge of a lawful written order, to wit: MCO 1020.34E, para 1003.4(b) (5), did, on or about 1300, 900216, willfully disobey the same by wrongfully not shaving.
         Award: Forfeiture of $481.00 per month for 2 months (forfeiture of $481.00 per month for 1 month suspended for 6 months), restriction for 60 days (30 days suspended for 6 months), reduction to E-3. Not appealed.

900702:  NJP imposed and suspended on 900305 for a period of 6 months is hereby vacated and the punishment is ordered executed.

900702:  NJP for violation of UCMJ, Article 91: Disrespectful in his deportment to SSgt A____ on or about 1806,900522, violation of UCMJ, Article 92: Disobey a lawful order given by SSgt A____ on or about 1806, 900522.
         Award: Forfeiture of $405.00 per month for 2 months, restriction for 60 days, reduction to E-2. Appealed 900709. Appealed denied 901124.

900717:  Counseled for deficiencies in performance and conduct. [Tardiness; disobedience to superior; disrespect to superior]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

910904:  Counseled for deficiencies in performance and conduct. [Substandard performance and unsatisfactory conduct: failure to obey Marine Corps uniform regulations by wearing toothpicks in your pierced ears while in uniform on the job and by failing to be clean shaven in that you were observed wearing a Fooman-chew mustache and goatee. Having been corrected about this by your first Sergeant, you still failed to properly shave your mustache in accordance with Marine Corps regulations. Despite being warned repeatedly, you have failed to observe MWR policies regarding personal conduct on the job by allowing females to visit with you excessively and interrupt your ability to properly perform you job]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

911101:  NJP for violation of UCMJ, Article 86: UA (AWOL) from appointed place of duty.
         Award: Forfeiture of $233.00 per month for 1 month (suspended for 6 months), restriction for 14 days, extra duty for 14 days (suspended for 6 months. Not appealed.

911125:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

911126:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.
920213:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed misconduct due to a pattern of misconduct, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

920316:  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 is our failure to conform to the standards of the Marine Corps. On 25 January 1989, you received NJP for violation of Article 134, UCMJ: Use of government telephone service under false pretense. On 24 March 1989, you received NJP for violation of Article 86, UCMJ: Unauthorized absence for 4 days. On 27 April 1989, you were counseled concerning your frequent involvement with military authorities. On 5 March 1990, you received NJP for violation of Articles 86, 91 (2 specifications), and 92, UCMJ: Unauthorized absence from appointed place of duty, disrespect towards a SNCO, and failure to obey a lawful general regulation. On 2 July 1990, you received NJP for violation of Articles 91 and 92, UCMJ: Disrespect toward a SNCO and disobey a lawful order from a SNCO. On 17 July 1990, you were counseled concerning tardiness, disobedience of superiors and disrespect toward superiors. On 4 September 1991, you were counseled concerning your substandard performance and unsatisfactory conduct. On 14 November 1991, you were administratively reduced to the rank of Private First Class for professional incompetence. Due to your continued misconduct, I have determined you possess no potential for further service, and accordingly, your retention is no warranted.

920406:  SJA review determined the case sufficient in law and fact.

920408:  GCMCA [Commander, 1 st Marine Division (REIN)] 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 920414 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. 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 five 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. Relief denied.

The applicant’s discharge characterization accurately reflects his service to his country. The discharge was proper and equitable. Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question. No such error or injustice occurred during the applicant’s enlistment. Additionally, there 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

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, failure to be at appointed place of duty; Article 91, disrespect to SNCO; Article 134, false pretense.
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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