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USMC | DRB | 2002_Marine | MD02-01035
Original file (MD02-01035.rtf) Auto-classification: Denied


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

ex-PVT, USMC
Docket No. MD02-01035

Applicant’s Request
The application for discharge review, received 020611, 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/MISCONDUCT, authority: MARCORSEPMAN Par. 6210.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

 1. My discharge was inequitable it was based on my request for discharge from the military because I didn't want to make any more mistakes in my service. As an E-1 I was given responsibilities that an NCO would receive. My proficiency was always known as excellent but the command in my unit looked right by it.

 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: None
         Inactive: USMCR(J)                980128 - 980129  COG

 Period of Service Under Review :
Date of Enlistment: 980129               Date of Discharge: 010308

 Length of Service (years, months, days):

         Active: 03 01 10
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

Education Level: 12                        AFQT: 32

 Highest Rank: PFC

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.8 (8)                       Conduct: 3.7 (8)

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR, Rifle Marksman Badge

 Days of Unauthorized Absence: 17

 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 :

990415:  Counseled for deficiencies in performance and conduct. [Did at Camp Fuji Japan, at approximately 0500, 990405 fail to be at his appointed place of duty (Bldg 268) by not returning from liberty in a timely manner.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

000426:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 91: Disrespectful in language toward Sgt K.A. S_, a non commissioned officer, who was in the execution of his office on or about 1200, 991206. Charge II: violation of the UCMJ, Article 89: Behave himself with disrespect toward Lt C.C_ (U.S Navy), then known by PFC S_, to be a superior commissioned officer by disrespectful acts and gestures on or about 0910, 991124. Charge III: violation of the UCMJ, Article 90: Having received a lawful command from Lt. C_, then known by PFC S_, to be a superior commissioned officer to identify himself and pick up the trash that he threw on the ground, did, on or about 0910, 991124 willingly disobey the same. Charge IV: violation of the UCMJ, Article 86: Did on or about 0730, 991216, without authority absent himself from his appointed place of duty at which he was required to be, to wit: Battery S, 5 TH Battalion, 10 th Marines, 2d Marine Division located at Camp Lejeune and did remain so until on or about 0730, 000106. Charge V: violation of the UCMJ, Article 87: Did on or about 991226 through design miss movement of Battery S, 5 TH Battalion, 10 th Marines, 2d Marine Division to CAX with which he was required in the course of duty to move.
         Finding: to Charge I and the specification thereunder, guilty. To Charge II and specification thereunder, Charges dropped. To Charge III and specification thereunder, Charges dropped. To Charge IV and specification thereunder, guilty. To charge V and specification thereunder, guilty.
         Sentence: Forfeiture of $620.00 pay per month for 1 month, confinement for 30 days, reduced to E-1.
         CA action 000428: Sentence approved and ordered executed except for that portion of the punishment adjudging forfeiture of $620.00 which is suspended for 6 months, unless sooner vacated at which time will be remitted without further action.
000615:  Counseled for deficiencies in performance and conduct. [Repeated violation of MCO P1020.34F, Failing to shave. Observed numerous times in uniform unshaven.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

xxxxxx:  Counseled for deficiencies in performance and conduct. [Failure to obey orders, specifically article 92 of the UCMJ.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
000808:  NJP for violation of UCMJ, Article 92: Did on or about 0730, 000721      fail to obey an order to shave his face.
 Awarded forfeiture of $217.00 pay per month for 1 month, restriction and extra duties for 14 days. Not appealed.
000911:  NJP for violation of UCMJ, Article 91: Disrespectful to an NCO, 1600 000803.
         Award: Forfeiture of $217.00 pay per month for 1 month, restriction and extra duty for 14 days. No indication of appeal in the record.

001213:  NJP for violation of UCMJ, Article 86: UA from Btry S, 5thBn, 10thMar during the period of 0730, 001025 through 0730, 001111, violation of UCMJ, Article 89: Willfully displayed disrespectful conduct toward Headquarters Platoon Commander by walking past him and not rendering an appropriate salute or greeting. When confronted by Headquarters Platoon Commander, SNM once again failed to give a proper salute and render an appropriate greeting on or about 0800, 001208, Camp Hansen, Okinawa, Japan, violation of UCMJ, Article 91: Willfully displayed insubordinate conduct toward Sgt M_ and Sgt T_ on or about 001019, at Camp Lejeune, NC; violation of UCMJ, Article 92: Willfully disobeyed a lawful order by operating and driving a POV after SNM's driving privileges were revoked on or about 001018, Camp Lejeune, NC; violation of UCMJ, Article 92: Willfully disobeyed a lawful order by operating a POV with revoked driving privileges on base, reckless driving, running a stop sign, and using excessive speed on or about 0800, 001120 at Camp Lejeune, NC; violation of UCMJ, Article 92: Willfully disobeyed a lawful order by failing to shave his face after numerous formal and informal counseling sessions by his chain of command on or about 0800, 001208, Camp Hansen, Okinawa Japan; violation of UCMJ, Article 111: Recklessly operating a POV on or about 2000, 001019, at Camp Lejeune, NC.
         Award: Forfeiture of $502.00 pay per month for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.
010108:  NJP for violation of UCMJ, Article 91: Wrongfully displayed insubordinate conduct towards Sgt M_, by telling him, "You need to get the fuck out of my room," on or about 0630, 010105, at Barracks 2725, Camp Hansen, Japan, violation of UCMJ, Article 92: Willfully disobeying a lawful order by not waking up at 0500 reveille, and failing to have his room and gear prepared for inspection on or about 0630, 010105, at Barracks 2725, Camp Hansen, Japan.
         Award: Forfeiture of $243.00 pay per month for 1 month, restriction and extra duty for 14 days. No indication of appeal in the record.
010129:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.
010130:  Applicant advised of his rights and having consulted 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.

010131:  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 is repeated incidents of misconduct. Under the current enlistment, Applicant received a conviction at a summary court-martial, four nonjudicial punishments and three counseling entries on page 11 of his service record. In each case he has demonstrated disorderly conduct of a nature to bring discredit upon the Armed Forces and a total lack of regard of the accepted standards of conduct expected of a United States Marine. Additionally, the lack of sincere desire to abide by and adhere to the rules and regulations that govern a Marine clearly demonstrate that he has no potential for further military service.

010216:  SJA review determined the case sufficient in law and fact.

010418:  GCMCA [Commanding General, 3d Marine Division] 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 010308 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 four nonjudicial punishments (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. Furthermore, the Applicant’s average performance and conduct markings are below the standard required for honorable service. While he may feel that his command overlooked positive aspects of his performance, 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. An upgrade would be inappropriate. 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 P1900.16E), 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 89, disrespect to a superior commissioned officer; Article 90, disobeying a lawful order of a commissioned officer; Article 91, disrespect to a non-commissioned officer; 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 “ 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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