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USMC | DRB | 2002_Marine | MD02-01056
Original file (MD02-01056.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD02-01056

Applicant’s Request
The application for discharge review, received 020722, 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 HONORABLE CONDITIONS (GENERAL)/Misconduct-Pattern of misconduct (with administrative discharge board), authority: MARCORSEPMAN Par. 6210.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1. At my discharge, none of my witnesses where able to show up. They were on temporary duty at the time.

 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)                920312 - 920323  COG

 Period of Service Under Review :
Date of Enlistment: 920324               Date of Discharge: 940323

 Length of Service (years, months, days):

         Active: 02 00 00
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4

 Education Level: 12                        AFQT: 75

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.3 (7)                       Conduct: 4.0 (7)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, MM, SSDR

 Days of Unauthorized Absence: 6

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct-Pattern of misconduct (with administrative discharge board), authority: MARCORSEPMAN Par. 6210.3.

 Chronological Listing of Significant Service Events :

930201:  Counseled for deficiencies in performance and conduct. [Repeated violations of Article 86, UCMJ and the loss of two military ID cards while assigned to TME-31.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
930802:  Counseled for deficiencies in performance and conduct. [Failure to be at his appointed place of duty at the appointed time. His inability to meet Marine Corps standards in assigned living spaces. His inability to maintain a suitable degree of attention to detail in the performance of his assigned duties in normal day to day operations.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
930809:  NJP for violation of UCMJ, Article 86:
 Specification: Failure to report to appointed place of duty at 0531-0635, 930809.
Awarded forfeiture of $200.00 per month for 2 months, restriction and extra duties for 45 days. Forfeiture suspended for 6 months. Not appealed.
930916:  Vacate suspended forfeiture awarded at CO's NJP dated 930809.

930916:  NJP for violation of UCMJ, Article 86:
 Specification: Absence from place of duty on 0630, 930825 until 0930, 930831 (6 days).
Awarded forfeiture of $456.00 per month for 2 months, restriction and extra duties for 30 days, reduction to PFC. Appealed. Appeal not submitted by 930923.
930922:  Counseled for deficiencies in performance and conduct. [Repeated offenses of unauthorized absence.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
931014:  NJP for violation of UCMJ, Article 86 (2 specs):
 Specification 1: Absence from place of duty 0700-1740, 931003.
Specification 2: Absence from place of duty 0900, 931010.
Violation of UCMJ, Article 92 (2 specs):
Specification 1: Failure to obey a direct order on 931003, to wit: failing to report for restriction muster.
Specification 2: Failure to obey a direct order on 931010, to wit: failing to report for restriction muster.
Violation of UCMJ, Article 134 (2 specs):
Specification 1: Break restriction by missing restriction muster on 931003.
Specification 2: Break restriction by missing restriction muster from 931010.
Awarded forfeiture of $407.00 per month for 2 months, restriction and extra duties for 30 days, reduction to Pvt. Forfeiture suspended for 6 months. Appealed. Appeal not submitted by 931021.



931020:  Counseled for deficiencies in performance and conduct. [Repeated disciplinary actions, specifically, 6105 counseling on 930201, 930802 and 930922 and NJP on 930812, 930916 and 931014.] Necessary corrective actions explained, sources of assistance provided.
931108:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.
931108:  Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
931220:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to a pattern of misconduct, that the misconduct warranted separation, and recommended discharge under honorable conditions (general).

940112:  Commanding Officer recommended discharge under honorable conditions (general) by reason of misconduct due to a pattern of misconduct. The factual basis for this recommendation was frequent involvement with military authorities and repeated incidents of misconduct, despite his having been afforded counseling in an effort to encourage him towards useful, productive service. As a result of his behavior, the respondent has been the subject of three (3) nonjudicial punishments and numerous counseling entries within a period of three (3) months. His actions and unwillingness to respond to counseling demonstrate that he is incapable of further honorable military service.

940127:  SJA review determined the case sufficient in law and fact.

940127:  GCMCA [Commanding General, 1 st Marine Aircraft Wing] directed the Applicant's discharge under honorable conditions (general) 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 940323 under honorable conditions (general) 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. The Applicant’s alleged lack of witnesses at his Administrative Discharge Board failed to convince the Board that the Administrative Discharge Board proceedings were improper or inequitable. 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. 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 92, failure to obey a lawful general order; Article 134, breaking restriction.
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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