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USMC | DRB | 2002_Marine | MD02-01030
Original file (MD02-01030.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD02-01030

Applicant’s Request
The application for discharge review, received 020710, 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 030410. 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/INVOL DIS (BOARD WAIVED) (PATTERN OF MISCONDUCT), authority: MARCORSEPMAN Par. 6210.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1. My undesirable discharge was inequitable because it was an isolated incident that arose from stupidity. No other actions followed this incident. All monies were repaid and time was served.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Statement from Applicant, dated October 10, 2001

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                900611 - 910602  COG

 Period of Service Under Review :
Date of Enlistment: 910603               Date of Discharge: 950630

 Length of Service (years, months, days):

         Active: 03 11 12         Excludes lost time
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 73

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.2 (15)             Conduct: 3.9 (15)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SSDR

 Days of Unauthorized Absence: 15

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

UNDER OTHER THAN HONORABLE CONDITIONS/INVOL DIS (BOARD WAIVED) (PATTERN OF MISCONDUCT), authority: MARCORSEPMAN Par. 6210.3.

 Chronological Listing of Significant Service Events :

921127:  NJP for violation of UCMJ, Article 123a:
 Specification 1: During the months of August and September 1992, with intent to defraud and for the procurement of items of value, made 12 checks to the AAFES Exchange for the total amount of $435.00.
Awarded forfeiture of $400.00 per month for 2 months, restriction and extra duties for 45 days, reduction to PFC. Forfeiture for 1 month suspended for 6 months. Not appealed.
921202:  Counseled for deficiencies in performance and conduct. [Receipt of NJP for violation of Article 123a on 921127.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
930513:  Counseled for deficiencies in performance and conduct. [Loss of identification card (DD 2MC).] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
930722:  Counseled for deficiencies in performance and conduct. [Deficiencies in a lack of attention to detail concerning accountability of ordnance custody receipt for a M16A2 rifle and a M7 bayonet.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
930913:  Counseled for deficiencies in performance and conduct. [Inability to maintain weapons cards properly, responsibility and attention to details. SNM two times destroyed a set of weapon cards issued to him and twice lost sets of cards.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
940810:  Applicant erroneously promoted to LCpl on 920501 based on an administrative oversight. Applicant will retain promotion to LCpl under the authority granted by the MARCORSEPMAN par 2200.
950410:  Summary Court-Martial.
          Charge I: violation of the UCMJ, Article 86 (3 specs):
         Specification 1: Unauthorized absence from 0730, 941219 to 2325, 950103 (15 days/surrendered).
         Specification 2: Unauthorized absence on 0630, 950217, to wit: Boondocker to take a Physical Fitness test.
         Specification 3: Unauthorized absence on 0630, 950218, to wit: Boondocker to take a Physical Fitness test.
         Charge II: violation of the UCMJ, Article 134:
         Specification 1: Defraud (no further information found in service record).
         Specification 2: On diverse occasions from 941016 to 941111 with intent to defraud, falsely pretend to be the authorized user of GTE Hawaiian Tel, then issued to LCpl P_, then knowing that the pretenses were false, and by means thereof did wrongfully obtain from GTE, Hawaiian Tel services, of a value of $492.86, to wit: collect calls.
         Finding: to Charge I, and II and the specifications thereunder, guilty.
         Sentence: CHL for 30 days, forfeiture of $569.00, reduced to Pvt.
         CA action 950418: Sentence approved and ordered executed except for that portion of the punishment adjudging forfeiture of $569.00 which is suspended for 6 months.

950522:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.
950522:  Applicant advised of his 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.

950522:  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 numerous derogatory counseling entries, one nonjudicial punishment, and summary court-martial conviction.

950613:  SJA review determined the case sufficient in law and fact.

950614:  GCMCA [Commanding General, Marine Corps Base Hawaii] 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 950630 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 one nonjudicial punishment (NJP), one summary court-martial 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. The fact the Applicant was punished for the offenses he committed does not mitigate his characterization of service. An upgrade would be inappropriate. Relief denied.

 The NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces. Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment. 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 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 123a, worthless checks.
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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