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USMC | DRB | 2002_Marine | MD02-00561
Original file (MD02-00561.rtf) Auto-classification: Denied


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


ex-PFC, USMC
Docket No. MD02-00561

Applicant’s Request
The application for discharge review, received 020321, 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 021217. 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 HONORABLE CONDITIONS (GENERAL)/Misconduct – Minor disciplinary infractions (with administrative discharge board), authority: MARCORSEPMAN Par. 6210.2.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION


Issues, as submitted

 1. MY GENERAL UNDER HONORABLE CONDITIONS DISCHARGE WAS UNJUST BECAUSE IT WAS BASED ON ONE ISOLATED INCIDENT DURING MY TIME IN THE MILITARY WITH NO OTHER ADVERSE ACTIONS.
Documentation
Only the Applicant's service record was reviewed, as the Applicant did not provide additional documentation for the Board to consider.

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
          Inactive: USMCR(J)                900301 - 900423  COG
Period of Service Under Review :
Date of Enlistment: 900424               Date of Discharge: 930910

 Length of Service (years, months, days):
         Active: 03 04 17
          Inactive: None
Age at Entry: 19                          Years Contracted: 4

 Education Level: 12                        AFQT: 40
Highest Rank: LCpl
Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.2 (7)              Conduct: 3.7 (7)
Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, Rifle Sharpshooter Badge, SSDR, NUC, SWASM (w/ Bronze Star), SECNAV LoC
Days of Unauthorized Absence: None

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

UNDER HONORABLE CONDITIONS (GENERAL)/Misconduct-Minor disciplinary infractions (with administrative discharge board), authority: MARCORSEPMAN Par. 6210.2.
Chronological Listing of Significant Service Events :

901120:  NJP for violation of UCMJ, Article 86: UA/AWOL from 2301, 901118 to 0245, 901119.
 Awarded forfeiture of $100.00 per month for 2 months, restriction for 15 days. Not appealed.
910531:  Eligible but not recommended for promotion to LCpl for month of June because of lack of attention to detail and knowledge in MOS, and past counseling for substandard attitude.

910930:  Counseled for deficiencies in performance and conduct [failure to be at appointed place of duty at the prescribed time]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
920111:  NJP for violation of UCMJ, Article 134: on or about 0001, 9 Dec 91, became drunk and disorderly of a nature to bring discredit upon the Marine Corps; violation of UCMJ, Article 116: at barracks #554, at about 0001, 9 Dec 91, participated in a breach of peace by wrongfully fighting in the barracks; violation of UCMJ, Article 128 (3 specs): did, at barracks #554, unlawfully strike LCpl M_ with a closed fist, about 0001, 9 Dec 91, unlawfully strike LCpl R_ with a closed fist, and did on or about 0001, 9 Dec 91, unlawfully strike Ms. P_ several times in the facial area with a closed fit; violation of UCMJ, Article 92: did, at B_'s restaurant, located on Culver and Walnut, Irvine CA, on or about 2200, 8 Dec 91, violate a lawful general order, by wearing an ear ring in his left ear.
         Awarded forfeiture of $250 pay per month for 2 months (suspended for 2 months), restriction and extra duty for 30 days (restriction for 30 days suspended for 6 months), reduction to E-2. Not appealed.
920122:  Counseled for deficiencies in performance and conduct [concerning two NJP's on 901121 and 920111 and two page 11 counseling entries on 910531 and 910930]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
921218:  Retention warning: Counseled for deficiencies in performance and conduct [failure to notify NCOIC/OIC of whereabouts and not arriving to work on time]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
930122:  NJP for violation of UCMJ, Article 90 and Article 92: assaulting or disobeying a lawful order given by a superior commissioned officer. Failure to obey order or regulation.
         Award: Forfeiture of $456 pay per month for 2 months, restriction and extra duty for 45 days (45 days extra duties suspended), reduction to E-2. Appeal submitted 930129. Appeal denied in part and granted in part, no relief granted 930405.
930416:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions as evidenced by Pg 11 counseling entries on 920122, 910930, 921218 and NJP's on 901121, 920111, 930122.
930416:  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 based on numerous counselings, both official and unofficial, and three NJPs. PFC H_ (Applicant) has established a pattern of negligence and willful disobedience to orders which shows he cannot or will not conform to standards expected of a U.S. Marine. He should, therefore be separated from the Marine Corps under other than honorable conditions.
930427:  Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

 930611:  Physical Evaluation Board found Applicant unfit to perform duties due to a physical disability (non-ratable) which Existed Prior to Entry.

 930729:  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 honorable conditions (general).

930812:  SJA review determined the case sufficient in law and fact.
930816:  GCMCA [CG, 3d MAW, Santa Ana, CA] directed the Applicant's discharge under honorable conditions (general) by reason of misconduct due to minor disciplinary infractions.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 930910 under honorable conditions (general) 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 honorable conditions (general) is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record. 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. Relief denied.

The Applicant’s discharge characterization accurately reflects his service to his country. Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question. No such error or inequity is evident 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 P1900.16D), effective 27 Jun 89 until 17 Aug 95.

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, disobedience of a lawful order from a superior commissioned officer; Article 92, failure to obey a lawful general order; Article 116, breach of peace; Article 128, assault; Article 134, drunk and disorderly.
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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