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USMC | DRB | 2003_Marine | MD03-00098
Original file (MD03-00098.rtf) Auto-classification: Denied


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

ex-PFC, USMC
Docket No. MD03-00098

Applicant’s Request
The application for discharge review, received 20021017, requested that the characterization of service on the discharge be changed to honorable. The Applicant requested a personal appearance discharge review before a traveling panel closest to Chicago, IL. The Applicant did not list any representative on the DD Form 293. In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington, D.C. area. The NDRB also advised that the Board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20030912. 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, authority: MARCORSEPMAN Par. 6210.3.


PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

 1. My other than honorable discharge was improper because I was only 24 hrs away from end of service. I was to be discharged on October 8 th , but instead it was rushed to October 7, 1 day before my end of service, which seemed very unfair to me. I also feel that the issues were minor and 75% involved personnel and family issues that I should have been allowed to handle, without a bunch of people who cared nothing about my families well being. My discharge reads I displayed a “pattern of misconduct”, I feel it was not a pattern of misconduct, but a young man away from home dealing with life’s issues. Also during my court-martial my command did not offer me any representation. I had no Idea of the impact that it would have on me and my family for the rest of my life. I should have had a lawyer or some type of counsel the explain what I was faceing and just what type of impact it would have.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Character reference, dated August 12, 2002
Character reference, undated
Character reference, dated September 11, 2002
Illinois State Police record check
Certificate of achievement, dated July 1, 2002
Applicant’s DD Form 214
Sixteen pages from Applicant’s service record
Applicant’s résumé

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                901129 – 911007  COG

 Period of Service Under Review :
Date of Enlistment: 911008               Date of Discharge: 951007

 Length of Service (years, months, days):

         Active: 04 00 00
         Inactive: None

 Age at Entry: 18                                   Years Contracted: 4

 Education Level: 12                                 AFQT: 46

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.1 (10)                               Conduct: 3.8 (10)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, HSM

 Days of Unauthorized Absence: None

 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 :

930811:  NJP for violation of UCMJ, Article 92:
 Specification: Disobeyed a military policeman.
Violation of UCMJ, Article 117:
Specification: Used provoking words towards LCpl.
Violation of UCMJ, Article 128:
Specification: Assault.
Violation of UCMJ, Article 134:
Specification: Communicated a threat towards LCpl.
Awarded forfeiture of $474.00 per month for 2 months, restriction and extra duties for 45 days, reduction to PFC. Reduction suspended for 6 months. Not appealed.
931013:  Counseled for deficiencies in performance and conduct. [Lack of professionalism and irresponsible conduct by failure to make just payments on Home Layaway ($117.40 and $86.10).] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
940324:  Counseled for deficiencies in performance and conduct. [Failure to be at the appointed place of duty in a timely manner and failure to adhere to or follow regulations.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
940423:  Counseled for deficiencies in performance and conduct. [Failure to adhere to or follow regulations and failure to prepare for CG’s preinspection.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
940907:  NJP for violation of UCMJ, Article 86 (3 specs):
 Specification 1: Absent from appointed place of duty on 0555-0610, 940808.
Specification 2: Absent from appointed place of duty on 0630-1000, 930819.
Specification 3: Absent from appointed place of duty on 1300, 940825.
Awarded forfeiture of $238 per month for 1 month, restriction and extra duties for 14 days. Forfeiture suspended. Not appealed.
941229:  Counseled for deficiencies in performance and conduct. [Alcohol related incident. Specifically, on or about 24 April 94 at 0300 Applicant was involved in an assault offense at the Enlisted Club. Additionally, on or about 20 Jul 94, Applicant was involved in a Domestic Disturbance/assault at his off base residence. On 9 Aug 94 his case was presented to MCBH Case Review Committee. The Committees’ recommendation was substantiated, Level II Spouse Abuse.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
950113:  Counseled for deficiencies in performance and conduct. [Grossly indifferent attitude toward one’s obligation. Specifically: debt and dishonorably failing to pay. This irresponsible conduct have led to two (2) pay checkages for Delinquent Home Layaways.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
950717:  Summary Court-Martial:
         Charge I: violation of the UCMJ, Article 121 (4 specs):
         Specification 1: Larceny and wrongful appropriation of a check during the month of June 1994 aboard MCBH, HI.
         Specification 2: Larceny and wrongful appropriation of a check between the months of June 1994 and August 1994 aboard MCBH, HI.
         Specification 3: Larceny of $127.20 on 940636 on the island of Oahu, HI.
         Specification 4: Larceny of $305.00 on 940818 on the island of Oahu, HI.
         Charge II: violation of the UCMJ, Article 123 (2 specs):
         Specification 1: Forgery of a check on 940624 on the island of Oahu, HI.
         Specification 2: Forgery of a check on 940818 on the island of Oahu, HI.
         Finding: to Charge I and II and the specifications thereunder, guilty.
         Sentence: Forfeiture of $433.00, restriction of 30 days, reduced to PFC.
         CA action 950726: Sentence approved as adjudicated, but $433.00 is suspended for 2 months.
950831:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.
950906:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
950913:  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.

950907:  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 misconduct as evidenced by two nonjudicial punishments and one summary court-martial conviction.

950926:  SJA review determined the case sufficient in law and fact.

950927:  GCMCA [Commander, 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 19951007 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. The Applicant was discharged upon his end of active service, two weeks after the separation authority directed the discharge. The Board found no indication that the Applicant’s separation was rushed. 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 summary court-martial, two nonjudicial punishments 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. An upgrade to honorable would be inappropriate. It must be noted that most Marines serve honorably and well and therefore earn honorable discharges. In fairness to those Marines, commanders and separation authorities are tasked to ensure that undeserving Marines receive no higher characterization than is due.
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. Despite the Applicant’s claims that he was not treated fairly by his command and was not represented properly at his summary court-martial, 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 18 Aug 95 until 30 Jan 97.

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, disobey a lawful order; Article 117, provoking words; Article 121, larceny; Article 128, assault; and Article 134, communicating a threat.
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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