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USMC | DRB | 2003_Marine | MD03-00497
Original file (MD03-00497.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD03-00497

Applicant’s Request
The application for discharge review was received on 20030130. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a personal appearance discharge review before a traveling panel closest to Allentown, PA. 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 20031229. 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 stated

 Applicant’s issues, as stated on the application:

1. “I feel that my “Patterns of Misconduct” occurred out of self preservation. I felt I wasn’t being treated fairly. On the count of “Disregarding a direct order I was refusing to PT everyday during lunch on deployment with out a shower prior to going back to work in 29 Palms. I felt segregated and it created a snowball effect. Everything I was charged for in the Marine Corps wouldn’t even have me fired at a civilian job I have never done anything illegal. My unit disapproved of me because they felt I was overweight. I did everything I could but it was not enough. I am pressing my education and can not afford to be what I thrive to be because of financial difficulties. I feel I deserve an honorable discharge. I had also wavered with a medical discharge because of my bowed bones in my low legs. I don’t feel I was perfect but I do not feel what I had done deserves loss of all privileges of being a Marine and what I worked so hard for.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
MCTFS Record of Service (4 pp.)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                960329 - 970120  COG

 Period of Service Under Review :
Date of Enlistment: 970121               Date of Discharge: 000623

 Length of Service (years, months, days):

         Active: 03 05 03
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 57

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.3 (10)                      Conduct: 3.9 (10)

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR, MM, Letter of Appreciation

 Days of Unauthorized Absence: 26

 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 :

980914:  Counseled for deficiencies in performance and conduct. [Frequent involvement with military authorities.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
990716:  NJP for violation of UCMJ, Article 86.
 Specification: Unauthorized absence 0730, 990614 to 0035, 990711 (26 days).
Awarded forfeiture of $537.00 per month for 2 months, restriction and extra duties for 45 days, reduction to PFC. Forfeiture, restriction, extra duty and reduction suspended for 6 months. Not appealed.
990902:  Counseled for deficiencies in performance and conduct. [For your defiant behavior, specifically your recent unauthorized absence in which you were UA for 28 days.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
991001:  Vacate suspended forfeiture, restriction, extra duty and reduction awarded at Commanding Officer’s NJP dated 990716.
991020:  NJP for violation of UCMJ, Article 92:
 Specification: Failure to obey order or regulation, to wit: having knowledge of BEQ regulations, had a male in her room after hours.
Awarded restriction for 7 days. No indication of appeal in service record.
000121:  NJP for violation of UCMJ, Article 92:
 Specification: Refused to train while attached to B Company for the Mat Scan Project on 991115, while on weight control.
Awarded forfeiture of $281.00 per month for 1 month, restriction and extra duties for 14 days. Forfeiture suspended for 6 months. No indication of appeal in service record.
000420:  Vacate suspended forfeiture awarded at Commanding Officer’s NJP dated 000121.

000522:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.
000524:  Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
000601:  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 her three nonjudicial punishments on 16 Jul 99, 20 Oct 99, and 21 Jan 00, and her constant violations of the UCMJ which resulted in vacating two of her three nonjudicial punishments, she’s been counseled in accordance with Paragraph 6105 of the MCO P19000.16H and still insisted on violating the UCMJ.

000608:  Applicant signed a conditional waiver waiving administrative discharge board.

000619:  SJA review determined the case sufficient in law and fact.

000619:  GCMCA [Commander, 1 st Force Service Support Group] 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 20000623 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 three occasions and adverse counseling entries on other occasions. The Applicant’s conduct, which forms the primary basis for determining the character of her service, reflects her 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 or under honorable characterization of service. The Applicant’s medical condition during her service does not mitigate her misconduct. While she may feel that her command treated her unfairly, the record of evidence does not demonstrate that the Applicant was not responsible for her conduct or that she should not be held accountable for her actions. Relief denied.

The Applicant’s discharge characterization accurately reflects her service to her country. Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question. No such error or inequity occurred 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. The Veterans Administration determines eligibility for post-service benefits, not the NDRB. There is no requirement or law that grants recharacterization solely on the issue of obtaining veterans’ benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.

The Applicant is reminded that she remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of her 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 31 Jan 97 until Present.

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; and 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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