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USMC | DRB | 2002_Marine | MD02-01209
Original file (MD02-01209.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD02-01209

Applicant’s Request
The application for discharge review, received 020821, requested that the characterization of service on the discharge be changed to honorable. The Applicant requested a documentary record discharge review. The Applicant listed the Disabled American Veterans as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030602. 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-Pattern of misconduct (administrative discharge board required but waived), authority: MARCORSEPMAN Par. 6210.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1. I was in the Marine Corp from 11/87-2/90. During this time I had some problems at home that affected my military actions. My uncle had recently died & my wife & I were getting a divorce. I did some crazy things. I had liquor in the barracks at one time. There were some other things I did as well.

 2. Dear Chairperson:

After a review of the Former Service Members (FSM) DD Form 293 Application for the Naval Discharge Review Board of Discharge or Dismissal from the Armed Forces of the United States and all of the evidence assembled for review, we continue to support the contentions as set forth by the Applicant, in his request that he be given the opportunity to upgrade his (Under Other Than Honorable Conditions) Discharge to a Honorable Discharge.

The (FSM) entered the Navy Military Service on November 1987 until February 1990 period of (3) years and (3) months. During this period of military service the (FSM) established a history of several offense and was charged under the UCMJ Non-judicial Punishments Code. The (FSM) was charged with several violations of refusing lawful orders to other charges of submitting or giving official statements to his superior's that he knew to be false as well as not appearing at the appointed places as ordered. These unlawful violations of offenses show continued negative behavior and UCMJ violation problems of willful conduct during his entire term of service.

The (FSM) now acknowledges his past negative behaviors he exhibited in his term of service that subsequently lead to his OTH discharge, he now feels these actions can be personally attributed to immaturely and inability to handle the stressful military life and structure that lead him to act out in inappropriate ways on active duty. The (FSM) claims he is now accepting full responsibility for his negative behaviors and asks for the boards and victim's forgiveness for his prior actions.

The (FSM) now respectfully requests an equitable standard be applied as well as equity in treatment in seeking the boards' approval to afford him the opportunity to receive an up-grade of his Under Other Than Honorable Discharge to an Honorable Discharge. The (FSM) sincerely hopes that by respectfully requesting and being granted an Up-Grade of his Discharge and citing the reasons for his past violations of the military service rules and policies and his subsequent dismissal from the US Marine Corps will show the Naval Discharge Review Board that he had corrected his immature behaviors and his inability to handle the day to day stresses of his life that lead him to act out and exhibit negative behaviors during his active military service.

The (FSM) feels his military accomplishments of service are a matter of Supreme Honor and Respect he will cherish throughout his lifetime. The (FSM) also states he had always tried to achieve Honor and Respect during his almost entire term of enlistment of military duty in the Corp, but failed on this short period of enlistment.

We respectfully request that the (FSM) be given complete and duly consideration by the board. We also respectfully request that the board consider each reasonable explanation submitted by the (FSM) who now wishes to seek to correct the mistakes he made in exhibiting the continued negative violations of UCMJ offenses that he was charged with and him up-grading his Other Than Honorable Discharge to a Honorable Discharge he received in his military service in the United States Marine Corps.

We ask for the Boards careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision. These issues do not supersede any issues previously submitted by the Applicant.

Respectfully,

 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)                870901 - 871117  COG

 Period of Service Under Review :
Date of Enlistment: 871118               Date of Discharge: 900524

 Length of Service (years, months, days):

         Active: 02 06 07
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4

 Education Level: 12                        AFQT: 45

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.8 (8)                       Conduct: 4.2 (8)

 Military Decorations: None

 Unit/Campaign/Service Awards: MM

 Days of Unauthorized Absence: None

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

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

 Chronological Listing of Significant Service Events :

881103:  Psychiatric Evaluation. Axis I: Alcohol dependence.
                                             Axis II: Personality Disorder. NOS.

 881109:  Counseled for deficiencies in performance and conduct. [Conduct unbecoming a Marine.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
881129:  NJP for violation of UCMJ, Article 86:
 Specification: Absence without leave, to wit: miss transportation to required medical appointment at Balboa at 0530, 881115.
Awarded extra duty for 15 days. Not appealed.
881129:  Counseled for deficiencies in performance and conduct. [Missing transportation to Balboa.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
900209:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 86:
         Specification 1: Fail to go to appointed place of duty on 0530, 981209.
         Specification 2: Fail to go to appointed place of duty on 0530, 901212.
         Specification 3: Fail to go to appointed place of duty on 0530, 900115.
         Specification 4: Fail to go to appointed place of duty on 0530, 900120.
         Charge II: violation of the UCMJ, Article 91:
         Specification: Willfully disobeyed a lawful order on 891206 given by Sgt.
         Charge III: violation of the UCMJ, Article 92:
         Specification: Willfully disobeyed a lawful written order by not keeping a good phone number while in a duty status on 891204.
         Finding: to Charge I, II, and III and the specifications thereunder, guilty.
         Sentence: Forfeiture of $282.00, confinement for 30 days, reduction to PFC.
         CA action 900220: Sentence approved and ordered executed except for the confinement which will be reduced to 30 days restriction.

900214:  Admitted to inpatient Alcohol Rehabilitation (Level III), Naval Hospital San Diego, CA.

900223:  Discharged from inpatient Alcohol Rehabilitation (Level III).

 900315:  NJP for violation of UCMJ, Article 92:
 Specification: Willfully disobeyed CWO4 by wearing civilian clothes while on restriction.
Awarded forfeiture of $200.00 per month for 2 months, restriction for 60 days, reduction to Pvt. Not appealed.
900321:  Counseled for deficiencies in performance and conduct. [Possession of hard liquor in barracks and compliance with StaO 11000.38.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
900403:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions and misconduct due to a pattern of misconduct.
900403:  Applicant advised of his rights and having elected 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.

900410:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions and misconduct due to a pattern of misconduct. The factual basis for this recommendation was numerous counseling entries, 2 NJP's and a summary court-martial conviction.

900427:  SJA review determined the case sufficient in law and fact.

900508:  GCMCA [Commander, Marine Corps Air Bases, Western Area] 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 900524 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. 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 nonjudicial punishment (NJP) on two occasions, a 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 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. 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 91, willfully disobey a lawful order from a NCO; 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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