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USMC | DRB | 2002_Marine | MD02-00141
Original file (MD02-00141.rtf) Auto-classification: Denied


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

ex-PVT, USMC
Docket No. MD02-00141

Applicant’s Request
The application for discharge review, received 011024, 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 020701. 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. 6210.2.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

 1. During the first 6-8 months I was having trouble with my wife and family. I asked for psychological help but was denied. Therefore the drunkenness and UA was me trying to deal with my problems.

2. All charges in Okinawa, Japan was false alligations, UA charges were due to Typhoon (check dates). Theft charges were false. The Gunnery Sergeant was aware of money missing before hand.

Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Letter from Applicant (2 pages)
Verification Letter (High School Diploma Requirements)
Transcript from Sullivan University (3 pages)


PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              None
         Inactive: USMCR(J)                950718 - 960206  COG

 Period of Service Under Review :
Date of Enlistment: 960207               Date of Discharge: 980623

 Length of Service (years, months, days):

         Active: 02 04 17
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 49

 Highest Rank: PFC

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.2 (4)              Conduct: 4.1 (4)

 Military Decorations: None

 Unit/Campaign/Service Awards: Rifle Marksman Badge, SSDR, Meritorious Mast

Days of Unauthorized Absence: 4

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MARCORSEPMAN Par. 6210.2.

 Chronological Listing of Significant Service Events :

960617:  NJP for violation of UCMJ, Article 86: (2 Specifications), Absence without leave, Spec 1: Did on or about 2400, 960601, without authority fail to go to his appointed place of duty, to wit: MarCorDet, Ft. McClellan, AL and did remain so absent until about 0250 on 960602, Spec 2: Did on or about 2200, 960602, without authority fail to go to his appointed place of duty, to wit: MarCorDet, Ft. McClellan, AL and did remain so absent until he returned on or about 1449 on 960604.
         Award: Forfeiture of $437.00 pay per month for 1 month (suspended for 6 months), restriction for 30 days. Not appealed.

960722:  Counseled for deficiencies in performance and conduct. [You have been in an Unauthorized Absence status twice since your assignment to MarCorDet, USAMP&CS/TC, Ft McClellan, AL 36205. Further, after being placed on restriction, as a result of receiving NJP for violation of Article 86 "Absence without leave", you violated said restriction twice in direct violation of the Commanding Officer guidance. Additionally, you were found to be drinking under the legal drinking age of 21, in violation of MDO 1000.1A Standard of Conduct, and Alabama State Law. This pattern of misconduct is prejudicial to the good order and discipline of this detachment and will not be tolerated]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

960722:  NJP for violation of UCMJ, Article 86: (2 Specifications), Absence without leave, Spec 1: Did on or about 2300, 960704, without leave go from his appointed place of duty, to wit: MarCorDet, Ft, McClellan, AL, Spec 2: Having knowledge of a lawful order issued by the Commanding Officer, to wit: Restriction Papers dated 960617, did on or about 2145, 960706, fail to obey the same by not checking in with the SDO for restrictions, violation of UCMJ Article 92: (2 Specifications), Failure to obey order or regulation, Spec 1: Failure to obey order or regulation issued by the Commanding Officer, to wit: Restriction Papers paragraph 2, dated 960617, and order which it was his duty to obey, did at the parking lot at the Royal Inn on or about 2300, 960704, fail to obey the same by wearing civilian attire while on restriction, Spec 2: Having knowledge of a lawful order issued by the Commanding Officer, to wit: MarCorDet Order 1000.1a, Standard of Conduct dated 930723, paragraph 5, Encl.1, an order which it was his duty to obey, did at the Ramada Inn, Anniston, AL, on or about 960706, fail to obey the same by consuming alcoholic beverages under the legal age of 21, violation of UCMJ Article 134: Restriction breaking, having been restricted to the limits of MarCorDet, by a person authorized to do so, did at the Royal Inn, on or about 2300, 960704, break said restriction.
         Award: Correctional Custody for 30 days. Not appealed.

970630:  Counseled for deficiencies in performance and conduct. [Your being UA from the H&S Bn rifle range detail on qualification day, 970605, Furthermore, you were counseled on your improper use of the chain of command in notifying your NCOIC and OIC about the incident. You understand that this type of behavior will not be tolerated from a Marine, and that you may be without a rifle range score for FY-97]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

970904:  NJP for violation of UCMJ, Article 86: Did on or about Camp Foster, 1800, 970815 without authority fail to go to his appointed place of duty, to wit: MPD/N and did remain absent until 2300, 970818, violation of UCMJ Article 92: On or about 970808, having knowledge of PMINST 3000.3A Ch 1 dated 960530, which it was his duty to obey, did fail to obey the same by wrongfully not being readily contacted.
         Award: Forfeiture of $505.00 pay per month for 2 months (suspended for 3 months), restriction duty for 40 days, reduction to E-1. Not appealed.

971212:  NJP for violation of UCMJ, Article 121: Did on or about 970818, wrongfully appropriate meal voucher forms, by allowing brig personnel to sign without paying, value of about $22.75 the property of U.S. Government.
         Award: Forfeiture of $210.00 pay per month for 1 month (suspended for 1 month), restriction and extra duty for 14 days. No indication of appeal in the record.

980129:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions.
980129:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

980205:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions. The factual basis for this recommendation was applicant having received four NJP's for various violations of the UCMJ and several counseling entries.

980227:  SJA review determined the case sufficient in law and fact.

980305:  GCMCA [Commanding General] directed the applicant's discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 980623 under other than honorable conditions for misconduct due to minor disciplinary infractions (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 nonjudicial punishment (NJP) for offenses triable by court-martial on four 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 the naval service, and falls short of that required for an honorable characterization of service. While he may feel that his family and psychological problems 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.

Issue 2. The applicant failed to provide sufficient documentation to overturn the Board’s presumption of regularity and corroborate his allegations that his last two NJPs were unjust. Relief is therefore denied on this issue.

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 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 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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