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USMC | DRB | 2002_Marine | MD02-00472
Original file (MD02-00472.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD02-00472

Applicant’s Request
The application for discharge review, received 020226, requested that the characterization of service on the discharge be changed to honorable. The Applicant requested a personal appearance discharge review before a traveling panel closest to Orlando, Florida 32868. The Applicant did not list any representative on the DD Form 293. In the acknowledgement letter to the Applicant, he was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington, D.C. area. The NDRB also advised that the board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 021115. 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. Psychiatric problems I have impaired my ability to serve. I understand now that my illness was the reason for me not remembering some things. Also, some of my answers to my fellow officers.

2. My average conduct and efficiency rating and behavior/proficiency marks were good. I wanted to be in the Marine Corp. My plans were to retire as a proud Marine.

3. During my three years in the Marine I received letters of recommendation and awards which shows my dedication to my fellow Marines and my comment to serve in the military.

4. Clemency is warranted because it is an injustice for me to continue to suffer the adverse consequences of a bad discharge. I am a devoted father and would like my daughter to have a general up bring.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Character reference dated August 15, 2001
Statement from Lakeside Alternatives office dated July 16, 2001
Character statement dated July 16, 2001
Character reference dated June 30, 2001
Character reference undated
Copy of DD Form 214
Ten pages from Applicant's service

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                931120 - 940925  COG

 Period of Service Under Review :
Date of Enlistment: 940926                        Date of Discharge: 970606

 Length of Service (years, months, days):

         Active: 02 08 11
         Inactive: None

 Age at Entry: 17 Parental Consent                Years Contracted: 4

 Education Level: 12                                 AFQT: 62

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.8 (9)                                Conduct: 3.7 (9)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, AFSM, JMU, SSDR, HSM, 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. 6210.2.

 Chronological Listing of Significant Service Events :

960710:  NJP for violation of UCMJ, Article 86:
 Specification: Absent from appointed place of duty on 1825, 14 Jun 96.
Violation of UCMJ, Article 91:
Specification: Willfully disobeyed a lawful order on 2150, 2 Jul 96, to wit: help carry laundry from the laundry room to the berthing area.
Violation of UCMJ, Article 92 (2 specs):
Specification 1: Derelict in the performance of duties on 1825, 14 Jun 96, to wit: negligently failed to do as upper vee watch.
Specification 2: Failed to obey lawful order on 2150, 2 Jul 96, to wit: help carry laundry from the laundry room to the berthing area.
Awarded forfeiture of $509.00 per month for 2 months, restriction for 60 days, reduction to PFC. Not appealed.
961010:  NJP for violation of UCMJ, Article 92:
 Specification: Derelict in the performance of duties as a 3051 allowing the misappropriation of government property on 1000, 27 Sep 96.
Violation of UCMJ, Article 107:
Specification: False official statement on 1000, 27 Sep 96.
Violation of UCMJ, Article 108:
Specification: Knowingly and willfully accept personal monetary gain in exchange for a modular sleeping system owned by the United States Marine Corps on 1000, 27 Sep 96.
Awarded forfeiture of $435.00 per month for 2 months, restriction and extra duties for 45 days, reduction to Pvt. Not appealed.
961010:  Counseled for deficiencies in performance and conduct. [Performance of work.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

970304:  Counseled for deficiencies in performance and conduct. [The act of theft committed by price switching.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
970320:  NJP for violation of UCMJ, Article 121:
 Specification: Wrongful appropriation of a Nautica shirt, to wit: putting a 15% discount sticker on and purchasing.
Violation of UCMJ, Article 134:
Specification: Appropriation of shirt which conduct was of a nature to bring discredit upon the armed forces.
Awarded forfeiture of $450.00 per month for 2 months, restriction and extra duties for 45 days. Not appealed.
970401:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions.
970401:  Applicant advised of rights and having declined counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
970401:  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's three nonjudicial punishment dated 960710, 961010, and 970320 and his two adverse page 11 entries dated 961010 and 970304.

970509:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to minor disciplinary infractions, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

970519:  SJA review determined the case sufficient in law and fact.

970527:  GCMCA [Commanding General, 2d Marine Division, U.S. Marine Corps Forces, Atlantic] 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 970606 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. The Board found that the Applicant’s age, education level, and test scores qualified him for enlistment. While he may feel that a psychiatric problem was a factor that contributed to his actions, the record clearly reflects his disregard for the requirements of military discipline and demonstrated that he was unfit for further service. 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’s average proficiency and conduct markings are below the standard required for an honorable characterization of service. Relief denied.

Issue 3. 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 three 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 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.

Issue 4. 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 inequity must have existed during the period of enlistment in question. No such error or inequity 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 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, dereliction of duties; Article 107, false official statements; Article 108, selling military property.
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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