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USMC | DRB | 2001_Marine | MD01-00901
Original file (MD01-00901.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD01-00901

Applicant’s Request
The application for discharge review, received 010627, 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 020118. 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 (admin discharge board required but waived), authority: MARCORSEPMAN Par. 6210.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1. In 1984 my girlfriend had a baby and so she told me that the child wasn't mine and because I didn't have enough money to prove that she was mine I went to the other military services and they told me that they couldn't help me to prove that she was my child but my recruiter told me that if I enlisted that the Marine's after Boot Camp would help me prove that she was my daughter but when I checked into it I was told that no such promise was made to me. Because of this I tried everything I could to try & get discharged! Until IT worked!

 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: None
         Inactive: USMCR(J)                850413 - 850425  COG

 Period of Service Under Review :
Date of Enlistment: 850426               Date of Discharge: 870928

 Length of Service (years, months, days):

         Active: 02 05 03
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

 Education Level: 12                        AFQT: 26

 Highest Rank: PFC

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 2.5 (7)                       Conduct: 2.4 (7)

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: 77

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

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

 Chronological Listing of Significant Service Events :

860224:  NJP for violation of UCMJ, Article 92:
 Specification: Disobeying a lawful order, to wit: not signing out in the liberty log before leaving the company area.
Awarded forfeiture of $167.00 per month for 1 month, correctional custody for 7 days. Not appealed.
860523:  NJP for violation of UCMJ, Article 90:
 Specification: Willfully disobey an order from 2d Lt to remain on base on 860504.
Violation of UCMJ, Article 92:
Specification: Willfully disobey a Bn order by wearing a collar-less shirt on liberty.
Awarded forfeiture of $167.00 per month for 1 months, restriction and extra duties for 14 days. Not appealed.
860530:  Vacate forfeiture of $167.00 awarded at CO's NJP of 24Feb86.
860710:  Counseled for deficiencies in performance and conduct. [Failing to be at appointed place of duty at time prescribed, sleeping on duty, and keeping your BEQ room in a good state of police]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
870109:  Vacate suspended forfeiture of $438.00 per month for 1 month awarded at CO's NJP on 17Aug87.

870109:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 86 (4 specs):
         Specification 1: Failure to go.
         Specification 2: Failure to go.
         Specification 3: Failure to go.
         Specification 4: Failure to go.
         Finding: to Charge I and the specifications thereunder, guilty.
         Sentence: Forfeiture of $438.00, confinement for 30 days, reduced to Pvt.
         CA action 870109: Sentence approved and ordered executed except for that portion pertaining to the forfeiture in excess of $200.00 is hereby suspended for a period of 12 months, unless sooner vacated.

870109:  Applicant to confinement.

870202:  Applicant from confinement.

870517:  Applicant in hands of civilian authorities.

870707:  Applicant released from civilian authorities.

870707:  Civil conviction in Superior Court Division, Onslow County, convicted of felonious larceny on 16May87.
 Sentence: Restitution of $600.00, court cost of $320.00 and supervised probation for 3 years.
870720:  Counseled for deficiencies in performance and conduct. [870517 arrest and 870707 conviction for a felony larceny of $1800.00. For this offense you were awarded 3 years supervised probation by Onslow County Superior Court]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
870721:  Counseled for deficiencies in performance and conduct. [My two nonjudicial punishments, one summary court-martial conviction, and letter of indebtedness dated 870420]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
870824:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 86:
         Specification: Unauthorized absence from 18May87 to 8Jul87.
         Finding: to Charge I and the specification thereunder, guilty.
         Sentence: Forfeiture of $438.00, confinement at hard labor for 30 days.
         CA action 870831: Sentence approved and ordered executed.
870910:  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.

870910:  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 your civilian conviction of 7 July 1987, summary court-martial convictions of 9Jan87 and 24Aug87, and nonjudicial punishments of 24Feb86 and 23May86 and adverse page 11 entries of 10 July 1986, 20 July 1987 and 21 July 1987.

870917:  SJA review determined the case sufficient in law and fact.

970818:  GCMCA [Commanding General, 2d Marine Division, Fleet Marine Force] 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 870928 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 applicant stated he tried everything he could to get discharged. 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) on two occasions, summary court-martials on two 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. Relief denied.

 Applicant 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 P1900.16C), Change 4, effective 29 Jul 87 until 26 Jun 89.

 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 for more than 30 days; Article 90, disobeying a lawful order of a commissioned officer; Article 92, failure to obey a lawful general order; Article 121, larceny.
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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