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USMC | DRB | 2002_Marine | MD02-01271
Original file (MD02-01271.rtf) Auto-classification: Denied


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

ex-PVT, USMC
Docket No. MD02-01271

Applicant’s Request
The application for discharge review, received 20020903, requested that the characterization of service on the discharge be changed to general/under honorable conditions. 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 20030812. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB. 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 (with administrative discharge board), authority: MARCORSEPMAN Par. 6210.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1. If a judge in a special court-martial did not think I deserved a derogatory discharge due to my record of service, then how can a Company 1 st SGT (who was having some extreme difficulties in his marital relationship) say that I deserve to be kicked out?

My issues are that the company 1 st SGT was so distraught over the lack of control over his personal life that he chose to abuse the power given his professional life. I am curious as to why there are so many X'ed out page 11 entries in my service record book along with entries without my signature. There were several other, people in my company who would probably vouch for witnessing many occasions in which R.T. S_ (Co. 1 ST SGT) would display uncharacteristly stressful emotions, and actions, concerning his wife.
One day before release from the brig (almost 4 months after scheduled discharge date) the company had me appear in front of an Admin Sep Board. The Company 1 st SGT had the BN. CMDR's secretary personally walk my paperwork to everyone necessary to sign for a discharge. This was done in 1 day, how long does it usually take for this type of action to go from hearing to discharge? Even though I do have several NJP's every one of them (except the 1 st ) has a valid explanation. Look at C_ P_'s record. He was demoted the same as promoted, just like me.

 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)                871106 - 880614  COG

 Period of Service Under Review :
Date of Enlistment: 880615               Date of Discharge: 920929

 Length of Service (years, months, days):

         Active: 04 03 15
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 88

 Highest Rank: Cpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.8 (11)                      Conduct: 3.9 (11)

 Military Decorations: None

 Unit/Campaign/Service Awards: Rifle Expert Badge (3 rd ), SSDRw/1*, NDSM, SASMw/2*, CAR, LOA, KLM, NUC

 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 (with administrative discharge board), authority: MARCORSEPMAN Par. 6210.3.

 Chronological Listing of Significant Service Events :

881121:  Counseled for deficiencies in performance and conduct [concerning violation of the UCMJ, i.e., underage drinking]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
881121:  NJP for violation of UCMJ, Article 92: Having knowledge of a lawful written order Bo 1700.6G, dtd 1 SEP 1986, to wit: consuming alcoholic beverages while under the lawful age, willfully disobeyed on or about 2110, 881105 at Carolina Palms Hotel, Jacksonville, NC.
 Awarded Restriction and extra duties for 14 days. Not appealed.
890323:  Counseled for deficiencies in performance and conduct [Immaturity, lack of leadership, and sub-standard performance of duties by being UA from an Air Alert formation of the Bravo increment]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

900319:  Counseled for deficiencies in performance and conduct [Adhering to acceptable standards of conduct, specifically; writing 6 worthless checks to MWR for $229.51 in December 89]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
900328:  NJP for violation of UCMJ, Article 92: Did on or about 2255, 900303 at Bldg # G554, disobey a lawful order from Cpl B_ to "Get in proper uniform and square away the area." Violation of UCMJ, Article 113: Did on or about 2250, 900303 at Bldg # G554 fall asleep while posted as barracks security watch.
 Awarded forfeiture of $180.00 pay per month for 1 month, restriction and extra duties for 14 days. Not appealed.
911210:  Counseled for deficiencies in performance and conduct [Concerning lost Armed Forces I.D. Card]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

920129:  NJP for violation of UCMJ, Article 86: Did on or about 0801, 920111, without authority, absent himself from his unit, to wit: B Co, 1 st Bn, 6 th Mar, 2 nd MarDiv, FMF, Camp Lejeune, North Carolina, and did remain so absent until he returned on or about 0753, 920112.
         Award: Forfeiture of $495.00 pay per month for 2 months (1 month suspended for 6 months), restriction for 30 days (suspended for 6 months), reduction to E-3. Not appealed.

920306:  NJP imposed and suspended on 920129 for a period of 6 months is hereby vacated and the punishment is ordered executed.

920312:  NJP for violation of UCMJ, Article 86: Did without authority, on or about 0701 hours, 920304, absent himself from his unit, and did remain so absent until 0558 hours, 920305 when he returned.
 Awarded forfeiture of $440.00 pay per month for 2 months, restriction for 30 days, reduction to E-2. Not appealed.
920619:  NAVDRUGLAB JACKSONVILLE FL, reported Applicant’s urine sample, received 920610, tested positive for THC.

920715:  Special Court-Martial.
         Charge I: violation of the UCMJ, Article 86: Failure to go to appointed place of duty.
         Charge II: violation of the UCMJ, Article 87: Wrongful use of marijuana.
         Findings: to Charge I and specification thereunder, withdrawn. To Charge II and specification thereunder, guilty.
         Sentence: Forfeiture of $250.00 pay per month for 4 months, reduction to E-1, confinement for 90 days.
         CA 920901: Sentence approved and ordered executed.

920812:  Medical evaluation determined Applicant to be alcohol dependent and a substance abuser.

920820:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.
920820:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
920820:  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 respondent's special court-martial conviction on 920715 and his four non-judicial punishments which were conducted on 881121, 900323, 920129, and 920312. The respondent has been appropriately counseled concerning his conduct; however he has failed to take corrective action.

920925:  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 other than honorable conditions.

920925:  SJA review determined the case sufficient in law and fact.

920925:  GCMCA [Commanding General] directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

920929:  Applicant declined treatment for substance abuse at a veterans’ administration hospital.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19920929 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 nonjudicial punishment (NJP) on four occasions, a special court-martial, alcohol dependence, and adverse counseling entries on other occasions. Since the Applicant was not awarded a bad conduct discharge from his special court-martial, the initiation of administrative separation proceedings was proper and equitable. While he may feel that his First Sergeant was a factor that contributed to his actions, the record clearly reflects his disregard for the requirements of military discipline and demonstrated that he was unfit for further 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. The Board found no impropriety or inequity in the fact that the Applicant was discharged four days after his Administrative Separation Board closed. Finally, it is widely accepted that many colorful characters from the Marines’ past may not have accomplished as much under current standards and policies. 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 112a, wrongful use of a controlled substance.
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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