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USMC | DRB | 2001_Marine | MD01-00822
Original file (MD01-00822.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD01-00822

Applicant’s Request
The application for discharge review, received 010530, 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 the American Legion.

Decision

A documentary discharge review was conducted in Washington, D.C. on 011218. 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 (administrative discharge board required but waived), authority: MARCORSEPMAN Par. 6210.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1. (Equity Issue) His violations of the UCMJ notwithstanding, this former member opines that his overall service record is sufficient to warrant release under honorable conditions.

 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 this application.

 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: USA                        840101 - 840302  HON
         Inactive: USMCR(J)                860905 - 861123  COG

 Period of Service Under Review :
Date of Enlistment: 861124               Date of Discharge: 900712

 Length of Service (years, months, days):

         Active: 03 07 19
         Inactive: None

 Age at Entry: 21                          Years Contracted: 4

 Education Level: 12                        AFQT: 38

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.0 (12)             Conduct: 3.6 (12)

 Military Decorations: None

 Unit/Campaign/Service Awards: Letter of Appreciation

 Days of Unauthorized Absence: 2

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

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

 Chronological Listing of Significant Service Events :

880122:  NJP for violation of UCMJ, Article 92 (2 specs):
 Specification 1: Fail to obey an order given by LCpl by saying to him "fuck you" on 2000, 24Nov87.
Specification 2: Derelict in performance of duties by willfully failing to walk his post as ordered by LCpl on 0200, 24Nov87.
Violation of UCMJ, Article 91:
Specification: Fail to obey an order to "take care of a bad check" by 1 st Sgt on 11Dec87.
Violation of UCMJ, Article 134:
Specification: Make and utter a check for $11.20 to the Marine Corps Exchange and thereafter knowingly fail to maintain sufficient funds to cover the check on presentment on 12Nov87.
Awarded forfeiture of $335.00 per month for 1 month, restriction for 14 days, reduction to Pvt. Forfeiture and reduction suspended for 6 months. Not appealed.
881004:  NJP for violation of UCMJ, Article 92:
 Specification: Disobey BnO 5100.5, to wit: drove his POV aboard P-111 desert site on 23Sep88.
Violation of UCMJ, Article 111:
Specification: Operate a vehicle in a reckless manner, to wit: driving at a speed in excess of 65 mph on 23Sep88.
Awarded forfeiture of $182.00 per month for 1 months, restriction and extra duties for 7 days. Forfeiture, restriction and extra duty suspended for 3 months. Not appealed.
890829:  NJP for violation of UCMJ, Article 86:
 Specification: Unauthorized absence from 0701, 18Aug89 to 0645, 21Aug89 (2 days).
Awarded forfeiture of $391.00 per month for 2 months, reduction to PFC. Forfeiture suspended for 6 months. Not appealed.
891116:  Vacate suspended reduction to PFC.

 900410:  Counseled for deficiencies in performance and conduct. [Unauthorized absence on 900404]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
900507:  Counseled for deficiencies in performance and conduct. [Poor performance of regular duties, continued tardiness, financial irresponsibility, improper conduct towards superiors, failure to pay just debts and lack of integrity]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
900517:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and commission of a serious offense.
900517:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and commission of a serious offense. The factual basis for this recommendation was three nonjudicial punishments and NIS report CCN# 01Sep89-11YU-0165-4KMA/F.

900611:  Applicant advised of his rights and having consulted 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.

900613:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 123 (3 specs):
         Specification 1: Defraud, falsely and wrongfully make and utter a certain check, to wit: check 203 in the amount of $189.60.
         Specification 2: Defraud, falsely and wrongfully make and utter a certain check, to wit: check 220 in the amount of $8.00.
         Specification 3: Defraud, falsely and wrongfully make and utter a certain check, to wit: 225 in the amount of $298.94.
         Finding: to Charge I and the specifications thereunder, guilty.
         Sentence: Forfeiture of $300.00, confinement for 30 days, reduced to Pvt.
         CA action 900702: Sentence approved and ordered executed.

900706:  SJA review determined the case sufficient in law and fact.

900709:  GCMCA [Commanding General, 3d Marine Aircraft Wing] 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 900712 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 disagrees with the applicant’s assertion that his overall service record warrants an honorable 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, a summary 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. Relief denied.

Issue 2. 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 clemency, based on post-service conduct. The applicant did not provide any 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, unauthorized absence; Article 92, failure to obey orders; Article 111, operating a vehicle in a reckless manner; Article 123, insufficient funds; and Article 134, uttering false checks.
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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