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USMC | DRB | 2001_Marine | MD01-01122
Original file (MD01-01122.rtf) Auto-classification: Denied


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

ex-PFC, USMC
Docket No. MD01-01122

Applicant’s Request
The application for discharge review, received 010820, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a documentary record discharge review. The applicant designated civilian counsel as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020620. 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. I would like for you to please consider my request for an upgrade of discharge from other than honorable to honorable. At the time of my discharge I was 23 years old, and I had just finished serving 5 months in the Gulf War and 6 weeks in Homestead Fla. During this time, I received several medals and various commendations. After returning to the base I became very depressed and irrational. I feel like my depression along with my immaturity played a great factor in my departure from the Corps. Now that I am grown with my own family I have come to terms with my past and I deeply regret my mistakes that lead to an other than honorable discharge. As a father, I am trying to set a good example for my son and by upgrading to an honorable discharge I would be one step closer to achieving this goal.

Thank you for your Consideration (signed by the Applicant)

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                900215 - 900528  COG

 Period of Service Under Review :
Date of Enlistment: 900529               Date of Discharge: 930302

 Length of Service (years, months, days):

         Active: 02 09 04
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4

Education Level: 12                        AFQT: 46

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.2 (6)              Conduct: 4.1 (6)

 Military Decorations: None

 Unit/Campaign/Service Awards: Marksman Rifle Badge, NDSM, SSDR,
SWASM (3*), MM, CoC

 Days of Unauthorized Absence: 3

 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 :

920622:  NJP for violation of UCMJ, Article 86: did, on or about 0600, 920601 fail to report to appointed place of duty, to wit: morning formation and PT formation, and did remain so absent until on or about 1400, 920604.
 Awarded forfeiture of $200.00 per month for 2 months, restriction and
extra duties for 30 days (forfeiture of $200 pay for 1 month, restriction and extra duty for 15 days suspended for 4 months). No indication of appeal in the record.
920804:  NJP imposed sand suspended on 920622 for period of 4 months vacated and the punishment ordered executed.

920804:  NJP for violation of UCMJ, Article 92: on or about 920722, disobey a NCO, by refusing to PT on cool down exercises, given by Sgt C_.
         Award: Correctional custody for 30 days, reduction to E-2 (suspended for 4 months). Not appealed in the record.
920826:  Counseled for deficiencies in performance and conduct [pattern of misconduct - had two NJP's in the last two months]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
920927:  NJP for violation of UCMJ, Article 92: disobeying a lawful order issued by the Commanding Officer, Special purpose Marine Air Ground Task Force, to not consume alcohol by consuming alcohol while on the discovery cruise on 920924.
         Award: Reduction to E-2. Not appealed.
930119:  NJP for violation of UCMJ, Article 86: did, on or about 2145, 930110, fail to report to appointed place of duty, to wit: to report for duty as sentry for battalion guard, for Spt Co., 8 th ESB, 2d FSSG, FMFLant, CamLej, NC.
         Award: Forfeiture of $189.00 pay per month for 1 month, restriction and extra duty for 14 days. Not appealed.
930203:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by your past record of misconduct.
930203:  Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

9300203:         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 the past record of misconduct.

930209:  SJA review determined the case sufficient in law and fact.

930212:  GCMCA [CG, 2d FSSG] 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 930302 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. A characterization of service of under other than honorable conditions is warranted when the member's conduct constitutes a significant departure of that expected of a Marine. T he applicant’s service was marred by award of a non-judicial punishment on four 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. While he may feel that his immaturity and depression were factors that contributed to his actions, 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.
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, unauthorized absence; Article 92, failure to obey a lawful general order.
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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