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USMC | DRB | 2002_Marine | MD02-00069
Original file (MD02-00069.rtf) Auto-classification: Denied


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


ex-Pvt, USMC
Docket No. MD02-00069

Applicant’s Request
The application for discharge review, received 011004, requested that the characterization of service on the discharge be changed to general/under honorable conditions. 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 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, authority: MARCORSEPMAN Par. 6210.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION


Issues

1. My discharge was inequitable because it was based solely on my pattern of misconduct, disregarding my "personality disorder" evaluation given by the naval officer Dr. M_ Kaneohe Bay, Hawaii - Base Mental Health Dept. Thus the discharge given disqualified me from receiving any benefits such as unemployment or medical benefits or to receive post traumatic stress counseling at any number of civilian psychiatric counseling centers. Therefore I feel I qualify to have my discharge ugraded to General Under Honorable Conditions so that I may receive the proper benefits. -Thank you.
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)                000329 - 000423  COG
Period of Service Under Review :
Date of Enlistment: 000424               Date of Discharge: 010323

 Length of Service (years, months, days):
         Active: 00 11 00
          Inactive: None
Age at Entry: 26                          Years Contracted: 4

 Education Level: 12                        AFQT: 50
Highest Rank: PFC

 Final Enlisted Performance Evaluation Averages (number of marks):
Proficiency: 3.1 (4)                       Conduct: 3.1 (4)

 Military Decorations: None
Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: 5
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 :

010130:  NJP for violation of UCMJ, Article 86 (3 specs):
 Specifications 1-3: Unauthorized absence for formation on 01Dec00, 12Dec00, and 12Dec00.
 NJP for violation of UCMJ, Article 87:
 Specification: Missed movement with the Battalion by knowingly and willing failing to show up on 1Dec00.
NJP for violation of UCMJ, Article 92:
 Specification: Violated orders to be at these formations.
Awarded forfeiture of $521.00 per month for 2 months, restriction and extra duties for 45 days, reduction to Pvt. Not appealed.
010226:  Counseled for deficiencies in performance and conduct. [Establishing a pattern of misconduct. Specifically, missing movement, multiple unauthorized absences, repeated failure to obey orders.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
010319:  NJP for violation of UCMJ, Article 86:
 Specification: Unauthorized absence from Battalion formation on 16Mar01.
 Violation of UCMJ, Article 87:
Specification: Missed movement with the Battalion for the Battalion 18 mile hike on 16Mar01.
 Violation of UCMJ, Article 134:
 Specification: Break restriction on 2145, 15Mar01, to wit: not signing in with the OOD.
 Awarded forfeiture of $521.00 per month for 2 months, restriction for 60 days. Not appealed.

010320:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and a commission of a serious offense.
010320:  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.
010320:  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 his numerous violations of the UCMJ, to include unauthorized absence, missing movement, failure to obey an order, as supported by your 2 page 11 entries and 2 nonjudicial punishments.

010321:  SJA review determined the case sufficient in law and fact.
010323:  GCMCA [Commanding General, Marine Corps Base Hawaii] 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 010323 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. There is no requirement or law that grants recharacterization solely on the issue of obtaining veterans’ benefits and this issue does not serve to provide a foundation upon which the Board can grant relief. Involuntary separation for misconduct takes precedence over separation for other reasons, such as personality disorders. 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 nonjudicial punishment (NJP) for offenses triable by court-martial on two occasions and adverse counseling entries on another occasion. These offenses occurred within a two month period. 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 would be inappropriate. 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. 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 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 86, unauthorized absence; Article 87, missing movement; Article 92, failure to obey a lawful general order; and Article 134, breaking restriction.
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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