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USMC | DRB | 2003_Marine | MD03-00198
Original file (MD03-00198.rtf) Auto-classification: Denied


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

ex-PFC, USMC
Docket No. MD03-00198

Applicant’s Request
The application for discharge review, received 20021115, 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 20031017. 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 HONORABLE CONDITIONS (GENERAL)/Misconduct –Minor disciplinary infractions (administrative discharge board required but waived), authority: MARCORSEPMAN Par. 6210.2.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

 Prior to the documentary discharge review, the Applicant introduced no issues, as block 8 on the DD Form 293 is blank.

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)               900112 - 900612  COG

 Period of Service Under Review :
Date of Enlistment: 900613               Date of Discharge: 940121

 Length of Service (years, months, days):

         Active: 03 07 09
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 78

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.4 (11)                      Conduct: 4.2 (11)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, Letter of Appreciation

 Days of Unauthorized Absence: None

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

UNDER HONORABLE CONDITIONS (GENERAL)/Misconduct-Minor disciplinary infractions (administrative discharge board required but waived), authority: MARCORSEPMAN Par. 6210.2.

 Chronological Listing of Significant Service Events :

920909:  NJP for violation of UCMJ, Article 128 (3 specs):
 Specification 1: Assaulted Cpl by grabbing her without permission/consent.
Specification 2: Assaulted Cpl by slapping her without permission/consent.
Specification 3: Assault LCpl by touching her without her consent/permission.
Awarded forfeiture of $200.00 per month for 1 month, restriction and extra duties for 14 days. Not appealed.
920914:  Counseled for deficiencies in performance and conduct. [Misconduct, specifically, violation of Article 128 of the UCMJ. Circumstances revealed your conduct was to the prejudice of good order and discipline in the armed forces. A situation that you could have avoided with the use of your leadership traits or principles and your chain of command.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

930122:  Counseled for deficiencies in performance and conduct. [Not being at the appointed place of duty on time.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

930301:  Counseled for deficiencies in performance and conduct. [Violation of the UCMJ Article 91, 92 dated 930212 disregard to Marine Corps Regulation to include NJP dated 920909 in reference to assault, page 11 entry dated 930122, not being at your appointed place of duty.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

930729:  Counseled for deficiencies in performance and conduct. [Being consistently late from appointed place of duty.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

930824:  Counseled for deficiencies in performance and conduct. [Period of unauthorized absence caused by excessive alcohol use.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

930921:  Counseled for deficiencies in performance and conduct. [Failure to comply with rules and articles governed by the Uniform Code of Military Justice.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

 930930:  NJP for violation of UCMJ, Article 86:
 Specification: Unauthorized absence from 0731-0800, 930830.
Violation of UCMJ, Article 134:
Specification: Drunk and disorderly in quarters on 0143, 930905.
Awarded forfeiture of $456.00 per month for 1 months, restriction and extra duties for 30 days, reduction to PFC. Not appealed.
931210:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions.

931210:  Commanding officer recommended discharge under honorable conditions (general) by reason of misconduct due to minor disciplinary infractions. The factual basis for this recommendation was a series of minor disciplinary infractions committed by you as documented by several service record book page 11 entries and two nonjudicial punishments. Despite the command’s repeated rehabilitative and counseling efforts, you continued to demonstrate a blatant disregard for authority, rules, and regulations, unfailingly resulting in continued misconduct. By your actions and unwillingness to respond to counseling, you have demonstrated that you have no potential for future honorable military service.

931210:  Applicant advised of his rights and having elected not 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.

931230:  SJA review determined the case sufficient in law and fact.

940105:  GCMCA [Commanding General, 3d Marine Division] directed the Applicant's discharge under honorable conditions (general) by reason of misconduct due to minor disciplinary infractions.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19940121 under honorable conditions (general) for misconduct due to minor disciplinary infractions (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).

 The Applicant did not introduce any decisional issues for the Board’s consideration. 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. Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question. No such error or injustice occurred during the Applicant’s enlistment. The Applicant’s service was marred by “several service record book page 11 entries … (for his) blatant disregard for authority, rules, and regulations ...” and the awarding of nonjudicial punishment (NJP) on two separate 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 far short of that required for a 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. T here 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. 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, insubordinate conduct; Article 92, failure to obey order or regulation; Article 128, assault; Article 134, drunk and disorderly .
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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