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USMC | DRB | 2003_Marine | MD03-00340
Original file (MD03-00340.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD03-00340

Applicant’s Request
The application for discharge review was received on 20021217. The Applicant requests that the characterization of service received at the time of discharge be changed to honorable. The Applicant requests 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 20031121. 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 stated

 Applicant’s issues, as stated on the application:

“Issue One. While in the Hospital under stress from a stab wound I was given a choice for my military future. A General visited me. and I thougt being discharged was the right thing. I do not remember the generals name, but after being stabbed on (1993-7-31) He asked me what I wanted. I mad a very Bad Decision. I chose to be discharged. I was in a Hospital Bed and I just wanted to go home. I did not realize the impact of my Decision. I am ashamed of my discharge, both my grandfathers and father were discharged Honorable from their military service. I am unable to use my G.I. Bill. I am currently enrolled at Purdue university. I had over 3 years of active duty service I sincerely wish I would have just finished to my EAS. I was not a perfect Marine but I loved being in the Marine Corp. That was all I wanted to do as kid. I realize I have bounced around many topics but what I would like to say in closing is I Truly believe that Had I not been under stress from my ordeal, I would have went to my EAS and been Honorably Discharged. I would have made the right Decision and not have to live with this regret. I tried to put this in a nutshell, but this was a very difficult time in my life. Thank you for considering my application.

 D_ W_ W_ ”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Statement from Applicant, undated
Patient Evacuation Tag Continuation, dated August 14, 1993

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                890718 - 900625  COG

 Period of Service Under Review :
Date of Enlistment: 900626               Date of Discharge: 930916

 Length of Service (years, months, days):

         Active: 03 02 21
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 84

 Highest Rank: PFC

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.6 (10)             Conduct: 3. 3 (10)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SSDR (w/1*)

 Days of Unauthorized Absence: 4

 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 :

901127:  NJP for violation of UCMJ, Article 86:
 Specification: Unauthorized absence from 1800, 901118, to wit: Company formation.
Award: Forfeiture of $163.00 per month for 1 month, restriction and extra duties for 14 days. Forfeiture suspended for 6 months. Not appealed.
910117:  Counseled for deficiencies in performance and conduct. [Lost/stolen Armed Forces Identification Card and failure to safeguard government property.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

910402:  Counseled for deficiencies in performance and conduct. [Alcohol related incident, specifically drunk and disorderly.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

910924:  Counseled for deficiencies in performance and conduct. [Drunk and disorderly conduct on 910831.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued. Applicant refused to sign.

911028:  Special Court Martial.
         Charge I: violation of the UCMJ, Article 86, (2 specs):
         Specification 1: Fail to go to appointed place of duty on 910917.
         Specification 2: Unauthorized absence from 1300, 910917 to 2030, 910918 (1 day/apprehended).
         Charge II: violation of the UCMJ, Article 91:
         Specification: Willfully disobey a SNCO on 910918.
         Charge III: violation of the UCMJ, Article 92:
         Specification: Violation of a lawful general order by wrongfully possessing and not registering a knife with a blade in excess of 2 3/8 inches on 910918.
         Findings: to Charge I, II and III and specifications thereunder, guilty.
         Sentence: Confinement for 5 months, forfeiture of $502 per month for 5 months, reduction to Pvt.
         CA 911127: Sentence approved and ordered executed. However, that part of the sentence extending to confinement in excess of 60 days will be suspended for a period of 12 months from the date of action at which time, unless sooner vacated, will be remitted without further action.

911120:  Counseled for deficiencies in performance and conduct. [Alcohol related incident, specifically, unauthorized absence from duty due to intoxication on 911112.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

911211:  NJP for violation of UCMJ, Article 86:
 Specification: Absent from appointed place of duty from 0715-0915, 911206, to wit: company formation.
Violation of UCMJ, Article 134:
Specification: In that PFC W_ was found to be intoxicated and in possession of a ½ pint of Rum in trouser pocket, in the barracks.
         Award: Forfeiture of $300 per month for 2 months, restriction and extra duty for 45 days. Not appealed.
911211:  Counseled for deficiencies in performance and conduct. [Pattern of misconduct, unauthorized absence from appointed place of duty and having had liquor in the barracks which is not allowed by Company BEQ Order.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

920812:  Counseled for deficiencies in performance and conduct. [The loss of an Armed Forces Identification card.] Necessary corrective actions explained, sources of assistance provided.

930414:  Counseled for deficiencies in performance and conduct. [An alcohol related incident that resulted in an infraction of the UCMJ and proved his relapse from Level III treatment. No sentence was adjudged at Battalion NJP.] Advised of recommendation for administrative separation.
930518:  SJA review determined the case sufficient in law and fact. I recommend disapproval and return to the CO, 3d Battalion, 2d Marines recommending separation utilizing paragraph 6210.3, pattern of misconduct as the basis for separation.

930617:  NJP for violation of UCMJ, Article 86:
 Specification: Absent from appointed place of duty at 0630-1045, 930615, to wit: Company formation.
Violation of UCMJ, Article 92:
Specification: Failure to obey order or regulation on 930614, to wit: failed to obey BO 1050.2G, going out of bounds without an out of bounds chit.
         Award: Reduction to Pvt, restricted for 60 days. No indication of appeal in the record.
930621:  Applicant requested treatment in conjunction with discharge.

930624:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions. The factual basis for this recommendation was Applicant’s special court-martial of 28 October 1991 and two nonjudicial punishments of 27 November 1990 and 11 December 1991.

930727:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions.
930727:  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.
930812:  Applicant requested a conditional waiver to an administrative discharge board, contingent upon being retained, or receiving a general discharge under honorable conditions or a more favorable characterization of service.
930813:  Applicant requested VA treatment nearest home of record for alcohol dependence in conjunction with discharge.
930813:  SJA review determined the case sufficient in law and fact.

930813:  GCMCA [Commanding General, 2d Marine Division, Fleet Marine Force, Camp Lejeune] 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 19930916 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).

Issue 1. The Board found no indication in the record that the Applicant was given a choice concerning his retention on active duty. The Applicant’s record of conduct fully warranted administrative separation for misconduct prior to his EAS. 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 two occasions, one special 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. An upgrade to honorable is inappropriate. Relief denied.

The Applicant’s discharge characterization accurately reflects his service to his country. 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, disrespect to a NCO; Article 92, disobey a lawful 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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