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USMC | DRB | 2002_Marine | MD02-00373
Original file (MD02-00373.rtf) Auto-classification: Denied


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


ex-Pvt, USMC
Docket No. MD02-00373

Applicant’s Request
The application for discharge review, received 020211, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed. The applicant requested a documentary record discharge review. The applicant did not designate a representative on the DD Form 293. Subsequent to the application, the applicant obtained representation by the American Legion.

Decision

A documentary discharge review was conducted in Washington, D.C. on 021008. 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 and narrative reason 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. (Equity Issue) This former member requests that the Board include provision of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post service conduct, in assessing the merits of this application.

Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Letter from applicant
 Copy of DD Form 214
Applicant's DD Form 214 worksheet
 Dept of Otolaryngology ltr dtd 9 Feb 99
 Referral for Civilian Medical Care dtd 9 Feb 99
 Naval Medical Center Portsmouth Telephone Consultation dtd 19 Aug 99
 Travel Authorization
Service Record pages (41 pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
          Inactive: USMCR(J)                961108 - 961208  COG

 Period of Service Under Review :
Date of Enlistment: 961209               Date of Discharge: 991031

 Length of Service (years, months, days):
         Active: 02 10 23
          Inactive: None
Age at Entry: 20                          Years Contracted: 4

Education Level: 12                        AFQT: 64
Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):
Proficiency: 4.5 (6)              Conduct: 4.4 (6)

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

 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 :

970619:  NJP for violation of UCMJ, Article 92: did, on about 2340, 970607 having knowledge of an order issued by Commanding Officer, violate said order, to wit: SNM consumed and had in her possession an alcoholic beverage in Brks 1762, Fort Leonard Wood, MO.
 Awarded forfeiture of $505.00 per month for 2 months, restriction and
extra duties for 45 days (restriction and extra duty for 15 days, at which time, unless sooner vacated will be remitted without further action). Not appealed.
990507:  NJP for violation of UCMJ, Article 86: on or about 990418 at 0730 until 0615, 990419 at Brks 4310 for duty was absent from appointed place of duty.
         Awarded forfeiture of $537 per month for 2 months, restriction and extra duty for 30 days, reduction to E-2. Not appealed.

 990524:  Counseled for deficiencies in performance and conduct [on 990507 SNM was found guilty at NJP for violation Article 86, UCMJ, unauthorized absence]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
990902:  NJP for violation of UCMJ, Articles 86 & 92: SNM was released from the Naval Hospital, Portsmouth, VA on 990819 around 1508. SNM reported back to the SDO on 990821 at 1120. On 990901 at 0515 SNM did violate DetO 11101.1E, Management BEQ visitors policy by being in Cpl R_'s (a male Marine) room after hours.
         Awarded forfeiture of $479 per month for 2 months (suspended for 6 months), restriction and extra duty for 45 days, reduction to E-1. Not appealed.

 990914:  Counseled for deficiencies in performance and conduct [violation of UCMJ, Articles 86 & 92]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
990927:  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 continued misconduct.
990927:  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.
990927:  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 continued misconduct.
991013:  SJA review determined the case sufficient in law and fact.

 991021:  GCMCA [Commander, 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 991031 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. The Board found that the service related documentation and statement provided by the applicant did not sufficiently mitigate the applicant’s misconduct to warrant an upgrade to her discharge. 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 a pattern of misconduct demonstrated by award of nonjudicial punishment (NJP) on three occasions and adverse counseling entries on other occasions. No other narrative reason more clearly describes the circumstances surrounding the applicant’s processing for administrative separation.
 The record is devoid of evidence that the applicant was not responsible for her conduct or that she should not be held accountable for her actions. The applicant’s conduct, which forms the primary basis for determining the character of her service, reflects her 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. 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.

The applicant’s discharge characterization accurately reflects her service to her 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 her 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 her discharge. Relief denied.

She is reminded that she remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of her 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 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.
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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