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USMC | DRB | 2003_Marine | MD03-00537
Original file (MD03-00537.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD03-00537

Applicant’s Request
The application for discharge review was received on 20030210. 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 La Habra, California 90631. 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 20040114. 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/INVOL DIS (BOARD WAIVED) (PATTERN OF 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. “Dear Board, upon my discharge on 05-01-1995 I feel that 4 bounced checks and a civilian DUI was an Improper way to give me other than Honorable. Due to the fact that on those checks (which were for Pizza) I was budgeting my money according to my direct deposit at Marine Corp Federal Credit Union and when everyone’s check did not, and I mean every one did not hit direct deposit like normal and hit direct deposit 8 days later, that’s when my checks bounced. I wrote a letter of apology to the Pizza Place and reimbursed them back for the check amounts and for the returns. Now on the D.U.I. in town that was my stupidity cause I know better but to be put in the brig for something I was punished for in town was a double jeopardy. I felt it was. My P.T. scores were excellent my work was excellent and everything that had to do with the United States Marine Corp was in fact in order. So Board member with all due respect I would like my other than Honorable upgraded to a Honorable discharge. Please. Thank you for your time and understanding.

J_ M_ S_
USMC E-1”
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)                930126 - 930620  COG

 Period of Service Under Review :
Date of Enlistment: 930621               Date of Discharge: 950501

 Length of Service (years, months, days):

         Active: 01 10 11
         Inactive: None

 Age at Entry: 24                          Years Contracted: 4

 Education Level: 12                        AFQT: 36

 Highest Rank: PFC

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.1 (5)                       Conduct: 3.6 (5)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, MUC

 Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/INVOL DIS (BOARD WAIVED) (PATTERN OF MISCONDUCT), authority: MARCORSEPMAN Par. 6210.3.

 Chronological Listing of Significant Service Events :

940210:  Counseled for deficiencies in performance and conduct. [Writing personal checks that were dishonored due to insufficient funds in your account.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
940524:  Counseled for deficiencies in performance and conduct. [Operating a motor vehicle aboard NAS Memphis while you were intoxicated (BAC .16).] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
940601:  NJP for violation of UCMJ, Article 111:
 Specification: Operate a vehicle while under the influence of alcoholic beverages on 940509.
Awarded forfeiture of $416.00 per month for 2 months, extra duties for 14 days, reduction to Pvt. Forfeiture and reduction suspended for 6 months. Not appealed.
940601:  Counseled for deficiencies in performance and conduct. [Operating a motor vehicle in Millington, TN while you were intoxicated (refused breath analyzer).] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
940603:  Drug and alcohol dependency screen. Alcohol abuse. Recommended for Level II treatment.
940616:  Vacate suspended forfeiture for 1 month and reduction awarded at Commanding Officer’s NJP dated 940601.
940617:  Counseled for deficiencies in performance and conduct. [Unauthorized absence from a prevent class at NAS Memphis.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
941019:  Counseled for deficiencies in performance and conduct. [Using poor judgment by voicing an inappropriate comment to a female Marine and for failing to pay your debts in a timely manner.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
941020:  Vacate remaining suspended forfeiture awarded at Commanding Officer’s NJP dated 940601.
950221:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 121:
         Specification: Steal four personal checks, numbered 310, 311, 312, and 313 between 940815 and 940828.
         Charge II: violation of the UCMJ, Article 123:
         Specification 1: Utter a certain check during the month of August, to wit: check number 312, in the amount of $18.37 to Pizza Hut, with intent to defraud, a writing which would, if genuine, apparently operate to the legal harm of another.
         Specification 2: Utter a certain check on 940829, to wit: check number 313, in the amount of $32.00 to Pizza Hut, with intent to defraud, a writing which would, if genuine, apparently operate to the legal harm of another.
         Finding: to Charge I and II and the specifications thereunder, guilty.
         Sentence: Forfeiture of $569.00, confinement for 30 days.
         CA action 950228: Sentence approved and ordered executed.

950221:  Applicant to confinement.

950317:  Applicant from confinement.

950320:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.
950320:  Applicant advised of 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.

950320:  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 your involvement of a discreditable nature with military authorities during this enlistment as evidenced by one summary court-martial, one nonjudicial punishment and other adverse entries contained on page 11 of your service record, coupled with your established pattern of failure to pay just debts.

950418:  GCMCA [Commanding General, Marine Corps Base, Camp Lejeune, NC] 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 19950501 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. The Applicant’s service was marred by award of a nonjudicial punishment, a summary court-martial and adverse counseling entries on four 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 evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. 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 111, drunk driving; Article 121, larceny; and Article 123, forgery.
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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