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NAVY | DRB | 2004 Marine | MD04-00213
Original file (MD04-00213.rtf) Auto-classification: Denied


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

ex-PVT, USMC
Docket No. MD04-00213

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 record 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 on the application:

Issue 1: “I wish to request my discharge be upgraded to honorable discharge because of the fact that my pro/con shows no problem with authority also there was a verbal tape made at my hearing of testimonies against me that was slowly revealing that they were all lies. I, myself never denied I had a problem because I did with my chain of command not doing there jobs with helping me with my family situation. And by me being young and looking back on all the situations I was involved in could have been avoided if I was given the opputunity to talk to someone in my chain of command and release the pain of not being there for my mom when she needed me the most. Going through the summary court martial I was judge by my peers, who for the first time actually hearing my side of the story for a change voted two to one recommending me to complete my enlistment. In the last year before my discharge they finally got me out of my chain of command with supply at first they placed me in S-1 with Master Sergant H_ & Sergant U_ and there was no further incident because they actually cared for the young marines under them. after taking me out of there because they thought I was being babied they put in the Motor T Admin Office with SSgt M_ who at first thought I was a Shitty Marine from what he heard about me but once he actually worked with me he too found out that the paper work on was all lies and that I was also young and stupid for not fighting the first NJP I received. All I really want is to be a marine to pick up where my career was slowly strip from me by not fighting back when I was being wronged”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214
Applicant’s written statement to his Administrative Discharge Board
Proficiency and Conduct marks, dtd 07/01/2001

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              None                       HON
         Inactive: USMCR (J)               990528 - 990627  COG

 Period of Service Under Review :
Date of Enlistment: 990628               Date of Discharge: 020118

 Length of Service (years, months, days):

         Active: 02 06 29
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4

Education Level: 12                        AFQT: 32

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.0 (8)                       Conduct: 3.5 (8)
 Does not include discharge pro, cons of 2.9 and 1.9 respectively.
Military Decorations: CertCom, MMast

 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 :

000613:  Counseled for deficiencies in performance and conduct. [Disrespect toward the Company Gunny and the Company Clerk (Cpl).] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
000626:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 91 (2 specs):
         Specification 1: Disobeying a direct order from a noncommissioned officer.
 Specification 2: Disrespect to a Staff noncommissioned officer.
          Charge II: Violation of the UCMJ, Article 134.
         Specification: Communicating a threat.
 Findings: to Charge I and specification 1 thereunder, not guilty. To specification 2 under Charge I, guilty. To Charge II and specification thereunder, not guilty.
Sentence: Reduced to E-1 and 60 days restriction.
         
000706:  Counseled for deficiencies in performance and conduct. [Unauthorized absence from appointed place of duty.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
000714:  Counseled for deficiencies in performance and conduct. [Unauthorized absence from appointed place of duty.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
001205:  NJP for violation of UCMJ, Article 91 (2 specs):
 Specification 1: on or about 1245, 27 November 2000 was disrespectful toward a noncommissioned officer who was in the execution of his office.
Specification 2: on or about 1215, 28 November 2000 willfully disobeyed a lawful order from a noncommissioned officer.
Violation of UCMJ, Article 92: on or about 1215, 28 November 2000 continued in his disobedience of a lawful order which he knew it was his duty to obey.
Awd forf of $273.00 per month for 1 month and 14 days restriction and extra duties. Forf susp. Not appealed.
010308:  Counseled for deficiencies in performance and conduct. [Poor judgment and attitude by making physical and verbal threats toward another Marine.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
010330:  NJP for violation of UCMJ, Article 128: did on or about 1030, 16 March 2001 assault LCpl H_ by striking him with a closed fist and throwing him to the ground.
 Violation of UCMJ, Article 91: on or about 1300, 20 March 2001 was disrespectful toward a noncommissioned officer who was in the execution of his office.
Awarded forfeiture of $283.00 per month for 1month and 14 days restriction and extra duties. Not appealed.
010403:  Counseled for deficiencies in performance and conduct. [Pattern of misconduct. NJP for insubordination and failure to obey an order. Pg-11 for poor judgment, poor attitude and communicating a threat, And, NJP for insubordination and assault.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
010419:  NJP for violation of UCMJ, Article 92: on or about 1930 7 April 2001 willfully disobeyed a lawful order, which he knew was his duty to obey.
Violation of UCMJ, Article 86: without authority failed to go at the time prescribed to his appointed place of duty.
Awd red to E-2, forf of $584.00 per month for 2 months and 45 days restriction and extra duties. Not appealed.
010820:  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 unsatisfactory character demonstrated by his numerous infractions of the Uniform Code of Military Justice.
010820:  Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
011023:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to a pattern of misconduct, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

011105:  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 disruption of good order and discipline.

011210:  SJA review determined the case sufficient in law and fact.

011217:  GCMCA [Commanding General, 1sr 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 20020118 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: Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question. No such error or injustice occurred during the Applicant’s enlistment. While he may feel his chain of command was not supportive of his “family situation” was a contributing factor, it does not mitigate the Applicant’s disobedience of the orders and directives regulating good order and discipline in the naval service. His service record is marred by award of nonjudicial punishment (NJP) on three separate occasions, a Summary Court-Martial on another occasion, and numerous negative page eleven counseling thus substantiating his misconduct and demonstrating he was unsuitable for further service . It must be noted that most Marines serve honorably; thereby, earning honorable discharges. In fairness to those Marines, commanders and separation authorities are tasked to ensure the undeserving receive no a service higher characterization than is due. An upgrade to honorable conditions would be inappropriate. Relief denied.

The NDRB recognizes that serving in the Marine Corps is very challenging.
Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve our country. 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 P1900.16F), effective 01 Sep 2001 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; Article 91, Insubordinate conduct ; Article 92, Failure to obey order or regulation ; Article 128, Assault ; Article 134, Communicating a threat.
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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