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USMC | DRB | 2002_Marine | MD02-00301
Original file (MD02-00301.rtf) Auto-classification: Denied


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


ex-Pvt, USMC
Docket No. MD02-00301

Applicant’s Request
The application for discharge review, received 020122, 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 designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020829. 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, as submitted

 1. In 1995 I was in the 1 st Bat 5 th Marines C Co. We were three days away from going to Japan and I broke my leg and I was sent to the first CEB with a clean service record. Until that time I had no bad marks on my record and started having problems about 5 months later with some of the NCO as they thought that hazing was a perfectly fine way to handle their business their abuse of authority caused me to see them in a different light. Then one day a Marine named G_ stole my wallet and I caught him with some of my personal property and got in a fight with him and had to go in front of the 1 st sergeant and made a promise to never touch another Marine. A month later we got in another scuffle and went in front of the 1 st Sergeant on serious charges of disobeying a direct order of a staff NCO. After that I became the focus of everyone’s attention. I was "burned" several different times. After that the last time was Sgt M_ he called a surprise uniform inspection and had everyone in the barracks be very quiet and not wake me up. When I got up at the normal time my platoon was on the parade deck and I got "burned" for UA. I subsequently was discharged. As I did not sign up in the Marine Corps to work on trucks and it was not my MOS and I believe had I stayed with my infantry Unit I would have received an honorable discharge. I believe my discharge should be upgraded.
Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214
Copy of Applicant's Service Record

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
          Inactive: USMCR(J)                940414 - 940417  COG

 Period of Service Under Review :
Date of Enlistment: 940418               Date of Discharge: 960801

 Length of Service (years, months, days):
         Active: 02 03 14
          Inactive: None
Age at Entry: 19                          Years Contracted: 4

 Education Level: 12                        AFQT: 84
Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):
Proficiency: 4.3 (8)                       Conduct: 3.4 (8)

 Military Decorations: None
Unit/Campaign/Service Awards: NDSM, Expert Rifle Badge

 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 :

951215:  NJP for violation of UCMJ, Article 92: willfully disobeyed order by 1stSgt C_, not to physically harm another Marine unless in self defense; violation of UCMJ, Article 128: unlawfully struck LCpl G_.
 Award: Forfeiture of $232.00 per month for 1 month (suspended for 6 months), restriction and extra duties for 14 days. Not appealed.
960112:  NJP imposed and suspended on 951215 vacated and punishment ordered executed this date.
960112:  NJP for violation of UCMJ, Article 90: on 4 Jan, 5 Jan, 8 Jan and 9 Jan 96, willfully disobeyed Capt G_'s direct order to be at Company Remedial PT every Monday and Friday at 0630; violation of UCMJ, Article 86: fail to go at the time prescribed to Company Remedial PT, 0630 on 4 Jan, 5 Jan, 8 Jan and 9 Jan 96.
         Award: Restriction for 7 days (suspended for 6 mos) and extra duty for 14 days. Not appealed.
960119:  NJP imposed and suspended on 960112 is vacated and punishment ordered executed this date.
960126:  NJP for violation of UCMJ, Article 86: UA, 1800, 16 Jan 96 - 1930, 16 Jan 96 from SuptCo. EPD, which was his appointed place of duty; violation of UCMJ, Article 90: 1800, 16 Jan 96, willfully disobeyed Capt G_'s command to report to SuptCo. EPD at the time prescribed from 1800 to 2000.
         Award: Forfeiture of $488 per month for 2 months, restriction for 60 days (30 days suspended for 6 mos), reduction to E-2. Not appealed.
960611:  Counseled for deficiencies in performance and conduct [UA from formation for uniform inspection]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
960611:  Counseled for deficiencies in performance and conduct [uttering and passing worthless checks]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
960709:  Counseled for deficiencies in performance and conduct [negligent loss of accountable government property]. Advised further actions of this nature may result in disciplinary actions.

 960711:  NJP for violation of UCMJ, Article 91: at 1150, 24 Jun 96, was disrespectful to Cpl T_ by saying to him "f--- you. ”
Award: Restriction for 30 days (30 days suspended for 6 mos), reduction to E-1. Not appealed.
960715:  Counseled for deficiencies in performance and conduct [frequent involvement with UCMJ]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
960718:  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 his non-judicial punishments.
960718:  Applicant advised of 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.
960722:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

960725:  SJA review determined the case sufficient in law and fact.
960726:  GCMCA [CG, 1 st MarDiv (Rein)] 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 960801 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 from that expected of a Marine. T he applicant’s service was marred by award of nonjudicial punishment (NJP) 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 chain of command treated him unfairly, 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. The Board found that the applicant’s transfer to a combat engineer unit does not mitigate his misconduct. An upgrade to honorable 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. Relief not warranted.

The 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. Representation at a personal appearance hearing is recommended but not required.



Pertinent Regulation/Law (at time of discharge)
A. Paragraph 6210, MISCONDUCT , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 18 Aug 95 until 30 Jan 97.

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 90, disobey a lawful order of a commissioned officer; Article 91, disrespect to a NCO; Article 92, failure to obey a lawful order; Article 128, assault.
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 “ afls14.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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