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USMC | DRB | 2003_Marine | MD03-00958
Original file (MD03-00958.rtf) Auto-classification: Denied


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

ex-PVT, USMC
Docket No. MD03-00958

Applicant’s Request
The application for discharge review was received on 20030508. The Applicant requests 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 20040401. 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 marked the box ”I HAVE LISTED ADDITIONAL ISSUES AS AN ATTACHMENT TO THIS APPLICATION.” None were found.
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214
Letter of Recommendation dated April 4, 2003
Copy of MCTFS Record of Service
Copy of Letter of Commendation
Copy of Certificate of Commendation
Copy of CO’s Certificate of Commendation Delivery Letter dated September 20, 1999
Copy of CO’s Certificate of Commendation Delivery Letter dated July 30, 1999

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              None
         Inactive: USMCR(J)                971027 - 980720  COG

 Period of Service Under Review :
Date of Enlistment: 980721               Date of Discharge: 010410

 Length of Service (years, months, days):

         Active: 02 08 19
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 35

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.6 (7)                       Conduct: 3.1 (7)

 Military Decorations: None

 Unit/Campaign/Service Awards: AFEM, HSM, SSDR, LOC

 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 :

000810:  NJP for violation of UCMJ, Article 89: Did at Camp Horno, on or about 0130, 000809, behave himself with disrespect toward the OOD, a superior commissioned officer, by being belligerent and saying “a good officer wouldn’t let this happen,” or words to that effect; violation of UCMJ, Article 92: Did on or about 0130, 000809 fail to obey a lawful written order to wit: Base Order 5000.2H Drinking under the age of 21, by wrongfully consuming alcohol under the age of 21; violation of UCMJ, Article 134: Was at Camp, Horno, on or about 0130, 000809, drunk and disorderly which was of a nature to bring discredit upon the armed forces.
 Awarded forfeiture of $630.00 pay per month for 2 months (suspended for 4 months), restriction and extra duties for 45 days, reduction to E-2 (suspended for 4 months). Not appealed.
000811:  Counseled for deficiencies in performance and conduct. [Lack of judgment in drinking alcohol while underage.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
000926:  NJP for violation of UCMJ, Article 92: Failure to obey order or regulation by drinking under the age of 21.
 Awarded forfeiture of $502.00 pay per month for 2 months (suspended for 6 months), restriction and extra duties for 45 days, reduction to E-1. Not appealed.
001128:  NJP for violation of UCMJ, Article 111: Did in Oceanside, CA, on or about 2140, 001116, physically control a vehicle, to wit: a passenger car, while alcohol was in blood; violation of UCMJ, Article 134: Was in Oceanside, CA on or about 2140, 001116, disorderly which conduct was of a nature to bring discredit upon the armed forces.
 Awarded forfeiture of $502.00 pay per month for 2 months, restriction and extra duties for 45 days. Not appealed.
001206:  Counseled for deficiencies in performance and conduct. [Poor judgment, which resulted in your arrest by civilian authorities for driving under the influence in Temecula.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

010130:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 107: On or about 001217, make a false official statement to 1 ST LT B_ to wit: “that he was off restriction and that he was done.” Charge II: violation of the UCMJ, Article 134: Did at 0030 on or about 001216 break said restriction.
         Finding: to Charge I and the specification thereunder, not guilty. To Charge II and the specification thereunder, guilty.
         Sentence: Forfeiture of $695.00 pay per month for 1 month, confinement for 30 days.
         CA action 010130: Sentence approved and ordered executed.

010220:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.
010220:  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.

010301:  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 two 6105 entries and your misconduct as evidenced by your three non-judicial punishments, one summary court martial, and page 11 counseling entries not recommending your promotion.

010327:  SJA review determined the case sufficient in law and fact.

010327:  GCMCA [Commander, 1 ST Marine Division (Rein)] 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 20010410 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).

The Applicant introduced no decisional issues for consideration by the Board. 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, one summary 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. An upgrade 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 P1900.16E), 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 89, disrespectful to a commissioned officer; Article 92, disobey a lawful order; Article 111, drunk driving; and Article 134, break restriction.
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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