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USMC | DRB | 2001_Marine | MD01-01188
Original file (MD01-01188.rtf) Auto-classification: Denied


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


ex-Pvt, USMC
Docket No. MD01-01188

Applicant’s Request
The application for discharge review, received 010917, 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 020417. 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, authority: MARCORSEPMAN Par. 6210.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION


Issues

1. It was to my understanding that under military guidelines in order to receive an Honorable Discharge you must maintain proficient/conduct marks of least 3.9/3.9. While in the service I maintained proficient/conduct marks of 4.3/4.2 (see attached MCTFS Record of Service). I believe this should qualify me for an upgrade to an Honorable Discharge.
Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of MCTFS Record of Service dated February 4, 1997 (2 copies)
Copy of DD Form 214 (Member 1 and 4)
 Thirty-one pages from applicant's service record

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                920918 - 930906  COG
Period of Service Under Review :
Date of Enlistment: 930907               Date of Discharge: 970321

 Length of Service (years, months, days):
         Active: 03 06 15
          Inactive: None

 Age at Entry: 18                          Years Contracted: 4
Education Level: 12                        AFQT: 49

 Highest Rank: LCpl
Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.3 (9)                       Conduct: 4.2 (9)
Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, MM, SSDR, Certificate of Commendation
Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MARCORSEPMAN Par. 6210.3.
Chronological Listing of Significant Service Events :

950404:  NJP for violation of UCMJ, Article 89:
 Specification: Disrespectful to 1 st Lt by saying "27 days motherfuckers" on 21Mar95.
 Violation of UCMJ, Article 91 (3 specs):
Specification 1: Disrespectful to Sgt by saying "I never heard that bullshit, Sgt on 21Mar95
 Specification 2: Disrespectful to Sgt by saying "Fuck this bullshit, you might as well go ahead and write me up because this is bullshit".
 Specification 3: Willfully disobeyed order from Sgt to leave instruction on how to be contacted if he left his room.
 Awarded forfeiture of $232.00 per month for 1 month, restriction and extra duties for 14 days. Restriction suspended for 3 months. Not appealed.
950404:  Counseled for deficiencies in performance and conduct. [Conduct unbecoming a Marine which was prejudicial to the good order and discipline of this command.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued
950928:  NJP for violation of UCMJ, Article 91:
 Specification: Disrespectful in language toward Sgt by saying "fuck and shit" when told to police his area on 1210, 27Aug95.
 Awarded forfeiture of $475.00 per month for 2 months, reduction to PFC. Reduction suspended for 6 months. Not appealed.
951107:  Vacate suspended reduction to PFC awarded at CO's NJP dated 950928.

 951205:  NJP for violation of UCMJ, Article 91:
 Specification: Disrespectful to SSgt in saying "you are crazy, I am not going outside in the rain so here's the pen, just write me up" on 31Oct95.
 Violation of UCMJ, Article 92:
 Specification: Willfully disobey SSgt order to go outside to PT on 31Oct95.
Awarded forfeiture of $427.00 per month for 2 months, reduction to Pvt. Forfeiture and reduction suspended for 6 months. Not appealed.
960418:  Summary Court-Martial.
          Charge I: violation of the UCMJ, Article 91 (2 specs):
         Specification 1: Disrespectful to GySgt on 4Apr96 in saying "Fuck this place", I'm going back to Med Bn." "I'm going to see the SgtMaj."
          Specification 2: Disrespectful to GySgt on 4Apr96 after being told twice to stop in saying "Fuck this place".
          Finding: to Charge I and the specifications thereunder, guilty.
         Sentence: Forfeiture of $581.00, confinement for 30 days, reduced to Pvt.
          CA action 960425: Sentence approved and ordered executed.
970115:  NJP for violation of UCMJ, Article 86:
 Specification: Absent from appointed place of duty on 19Dec96.
 Violation of UCMJ, Article 91:
Specification: Insubordinate to DNCO when asked to field day the common area of barracks HP 308. When asked to commence with the field day a second time he replied "write me up, I ain't doing it! I'm G-6 and we don't do this stuff.
 Violation of UCMJ, Article 92:
 Specification: Disobeyed a lawful order from Cpl to meet at the field day muster at 1830 in front of the duty room on 19Dec96
Awarded forfeiture of $218.00 per month for 1 month. Not appealed.
970307:  SJA review determined the case sufficient in law and fact.
970307:  GCMCA [Commanding General, 2d Force Service Support Group] directed the applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.
Partial discharge package missing from service record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 970321 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. In the case of an administrative separation, characterization of service of 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 four occasions and a summary court-martial on another occasion. 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. 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 P1900.16E), effective 31 Jan 97 until Present.

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 89, disrespect to a superior commissioned officer; Article 91, disrespect to a superior non-commissioned officer; 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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