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NAVY | DRB | 2004 Marine | MD04-00198
Original file (MD04-00198.rtf) Auto-classification: Denied


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

ex-PVT, USMC
Docket No. MD04-00198

Applicant’s Request
The application for discharge review was received on 20031117. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a documentary discharge review. The Applicant did not list a representative on his DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040628. 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 in letter attached to the application:

Issue 1: “I feel that my discharge was inequitable. Because it a\par was not base on my entire service record. It was general in nature; it did not consider the circumstances. It also come only after I requested transfer from my formal unit, because of the zeal of officers not in my mos to agitate me at every opportunity.

As a Marine station on Oki. I received informal counseling as required, routine every thirty days. With above average marks about 4.3 to 4.5 pros and cons. At my next duty station this was not the case. I received informal counseling as a punishment and not on routine bases.”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214
Copy of DD Form 215
Applicant’s letter to the Board, undated
Character reference, dtd July 16, 2003

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              None                       HON
         Inactive: USMCR (J)               961031 - 961117  COG

 Period of Service Under Review :
Date of Enlistment: 961118               Date of Discharge: 000323

 Length of Service (years, months, days):

         Active: 03 04 06
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 53

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.0 (11)                      Conduct: 3.8 (11)

 Military Decorations: Ltr of App

 Unit/Campaign/Service Awards: SSDR

 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 :

980803:  Counseled for deficiencies in performance and conduct. [Poor judgment and a lack of self-discipline.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

980911:  Counseled for deficiencies in performance and conduct. [Off-base alcohol related incident, specifically for DWI.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
980911:  Counseled for deficiencies in performance and conduct. [License to operate motor vehicles aboard DoD installations is suspended for 1 yr.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
980924:  NJP for violation of UCMJ, Article 92 (2 specs):
 Specification 1: Disobey(ed) BnO 1700.2C by operating a Motor Vehicle wile having a BAC of .03 while under the age of 21.
Specification 2: Violate(d) a lawful order from his Platoon Commander to not drink and drive.
Awd forf of $100.00 per month for 1 month, 14 days restriction and extra duties. Forf susp for 6 mos. Not appealed.
981103:  NJP for violation of UCMJ, Article 91 (2 specs):
 Specification 1: was disrespectful to 1stSgt T_.
Specification 2: was disrespectful to Sgt H_.
Violation of UCMJ, Article 117: did make provoking gestures to 1stSgt T_.
Awd red to E-2, forf of $519.00 per month for 2 months and 30 days correctional custody. Forf susp for 6 mos. Not appealed.
990803:  NJP for violation of UCMJ, Article 86: was absent from appointed place of duty.
 Violation of UCMJ, Article 91: was disrespectful to GySgt P_.
Violation of UCMJ, Article 92: did disobey a lawful order from 1stSgt T_.
 Awd red to E-1 and 45 days restriction and extra duties. 45 days restriction and extra duties susp for 6 mos. Not appealed.
000120:  Counseled for deficiencies in performance and conduct. [Loss of ID card and rifle card. This is not the first time...] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
000120:  Counseled for deficiencies in performance and conduct. [Violations of article 91(x2) and article 86 of the UCMJ.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
000121:  NJP for violation of UCMJ, Article 91 (2 specs):
 Specification 1: willfully disobeyed a lawful order from Cpl S_.
Specification 2: was disrespectful in deportment to SSgt M_ and Cpl S_.
Awarded 14 days restriction and extra duties. Susp for 6 mos. Not appealed.
000211:  Counseled for deficiencies in performance and conduct. [Domestic disturbance and subsequent arrest by civil authorities.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
000216:  Counseled for deficiencies in performance and conduct. [Disrespectful attitude towards Staff NCOs and revocation of state and base driving privileges.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
000216:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by his continuous involvement with authorities and his explosive personality.
000216:  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 submit rebuttal statements and the right to obtain copies of the documents used to support the basis for the separation.

000216:  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 the Applicant’s “continuous involvement with military authorities as evidenced by (his) four non-judicial punishments and seven adverse counseling entries on pages 11 of (his) service record.”

000317:  GCMCA [Commanding General, 2d Marine Aircraft Wing] directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

000608:  SJA review determined the case sufficient in law and fact.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20000323 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: The record does not support the Applicant’s assertion that his overall service record warrants an honorable discharge. When a Marine’s service has been honest and faithful, it is appropriate to characterize that service as honorable. 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 member of the U. S. Marine Corps. T he Applicant’s service was marred by award of nonjudicial punishment (NJP) on three occasions for Unauthorized absence; Insubordinate conduct ; Failure to obey an order or regulation ; and Provoking speeches or gestures. Additionally, the Applicant’s record documents seven 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 that regulate good order and discipline in the naval service. His conduct falls short of that required for an honorable characterization of service. An upgrade to honorable would be inappropriate. It must be noted that most Marines serve honorably and well; thereby, earning honorable discharges. In fairness to those Marines, commanders and separation authorities are tasked to ensure that undeserving Marines receive no higher characterization than is due. While the NDRB respects the fact that the Applicant tried, his service is equitably characterized as being performed under other than honorable conditions. Relief is 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 31 Aug 01.

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 117, Provoking speeches or gestures .
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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