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USMC | DRB | 2002_Marine | MD02-00863
Original file (MD02-00863.rtf) Auto-classification: Denied


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

ex-PVT, USMC
Docket No. MD02-00863

Applicant’s Request
The application for discharge review, received 020530, 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 list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030228. 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 the past two years I have been a model citizen. I am currently enrolled at Chandler-Glendale College working towards a BA in criminal justice.

2. I am currently employed by the Arizona State Dept of Corrections. Graduated third in my academy class.

3. I was young and immature when I joined the Marine Corps. I have learned a great deal since then and wish to do more now

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
None

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              None
         Inactive: USMCR(J)                980121 - 980622  COG

 Period of Service Under Review :
Date of Enlistment: 980623               Date of Discharge: 000320

 Length of Service (years, months, days):

         Active: 01 09 28
         Inactive: None

 Age at Entry: 17                          Years Contracted: 4

Education Level: 12                        AFQT: 68

 Highest Rank: PFC

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.0 (5)                       Conduct: 3.2 (5)

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR, GCM

 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 :

990408:  Counseled for deficiencies in performance and conduct (Not returning to appointed place of duty at the ATS building for HMMWV school). Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued

990409:  NJP for violation of UCMJ, Article 86: Unauthorized absence from 1300 to 1500 on 990407.
         Award: Forfeiture of $251.00 pay per month for 1 month (suspended for 3 months), restriction and extra duty for 14 days. No indication of appeal in the record.

990730:  NJP for violation of UCMJ, Article 91: In that PFC J_ A. P_, at Camp Hansen, Okinawa, Japan, at or about 1300 on 990711, was disrespectful in language toward Cpl W_, a noncommissioned officer, then known by the said PFC P_ to be a superior noncommissioned officer, who was in the execution of his office, by saying to him "your rank does not carry that much weight," or words to that effect; violation of UCMJ, Article 91: In that PFC J_ A. P_, at Camp Hansen, Okinawa, Japan, at or about 1300 on 990711, was disrespectful in language toward Cpl B_, a noncommissioned officer, then known by the said PFC P_ to be a superior noncommissioned officer, who was in the execution of his office, by saying to him "I don't have to do what you tell me to" and "shut up", or words to that effect.
         Award: Forfeiture of $251.00 pay per month for 1 month, restriction and extra duty for 14 days. No indication of appeal in the record.

990927:  Counseled for deficiencies in performance and conduct (Acted with disrespectful language and actions towards Sgt E___ (mess NCOIC) and being UA from appointed place of duty for three hours and thirty five minutes). Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

991001:  Counseled for deficiencies in performance and conduct. (Going UA during a field operation in Australia; while UA, attempted to flee from custody after being ordered to halt by the Battery 1stSgt). Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
991004:  Counseled for deficiencies in performance and conduct. (SNM was not in his appointed place of duty three times during the period of 991002 to 991004). Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

991019:  Applicant to pre-trial confinement. The Applicant was credited with having served 30 days pre-trial confinement from 991019 to 991117.

991117:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 86: Go from his appointed place of duty, to wit: the pot shack in the "E" Battery Messhall aboard USS Fort McHenry on or about 990927. Charge II: violation of the UCMJ, Article 91: (2 Specifications), Specification 1: Disrespectful in language and deportment toward Sgt E_ on or about 990927; Specification 2: Willfully disobeyed Sgt E_ on or about 990927. Charge III: violation of the UCMJ, Article 113: Leave his post as a sentinel for "E" Battery assembly area on or about 991001.
         Finding: to Charge I and the specification thereunder, guilty. To Charge II and specifications 1 and 2 thereunder, guilty. To Charge III and specification 1 thereunder, guilty.
         Sentence: Confinement for 30 days, forfeiture of $639.00 pay per month for 1 month, reduced to E-1.
         CA action 991202: Sentence approved and ordered executed except for that portion of the punishment adjudging forfeiture of $000.00 which is suspended for 3 months.

991130:  First Sergeant , Battery E, Battalion Landing Team 1/5 recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct

991130:  Headquarters Platoon Commander, Battery E, Battalion Landing Team
         1/5 recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct

000201:  Applicant's battery commander recommends administrative discharge. Battery commander's comments: "In fourteen months of service with Battery E, Private P_ has established a relentless pattern of misconduct that began with unauthorized absence and has progressed to disrespect and misconduct of a sentinel. He has failed to respond to informal and formal counseling. After two Non Judicial Punishments and a Summary Court Martial, he continues to disrespect regulations and refuse to accept responsibility for his individual actions."

000225:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.
000225:  Applicant advised of his rights and having elected to consult with counsel certified under UCMJ Article 27(b), elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

000225:  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 the Applicant's repeated violation of the UCMJ despite numerous counseling and opportunities to correct his deficiencies. Commanding Officer's comments: "During your enlistment, you received counselings for Unauthorized Absence and Disrespect toward a Noncommissioned Officer. On April 1999, you received battery level NJP for unauthorized absence. On July 1999, your received battery level NJP for Disrespect in Language and actions toward a Noncommissioned Officer. You have displayed a blatant disregard for orders and regulations and should be expeditiously processed from the Marine Corps."

000308:  SJA review determined the case sufficient in law and fact.

000308:  GCMCA (Commander, 1 st Marine Division (Rein), Camp Pendleton, CA) 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 000320 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).

 Issues 1 and 2: The Applicant contends that, in the more than two years since his discharge, he has been a model citizen, pursuing an educational degree and obtaining employment, and this justifies an upgrade to his discharge. The service records that the NDRB reviewed showed that the Applicant's discharge characterization accurately reflects his service to his country and, in order for the Board to permit relief, there must be evidence of inequity, impropriety, or procedural irregularities in the Applicant's discharge. No such evidence was found. Additionally, there is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct in the civilian life subsequent to leaving the service. The NDRB is authorized, however, to consider post-service factors in the recharacterization of a discharge. Outstanding post-service conduct, 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 may be considered. Examples include documentation such as educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities. At this time, the Applicant has not provided such documentation for the Board to consider. Relief is therefore denied.

Issue 3: The Applicant contends that, at the time of his enlistment, he was young and immature but has grown since that time. The Board recognizes that serving in the Marine Corps is very challenging but it must be noted that most Marines serve honorably and well and, therefore, earn honorable discharges. In fairness to those Marines, command-ers and separation authorities are tasked to ensure that undeserving Marines receive no higher characterization than is due. While the NDRB respects the fact that the Applicant tried, his service is equitably characterized as being performed under other than honorable conditions. Relief on this basis is 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 91 Insubordinate conduct toward (specifically willfully disobeying) warrant, noncommissioned, or petty officer, and Article 113 Misbehavior of sentinel or lookout.
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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