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NAVY | DRB | 2004 Marine | MD04-00263
Original file (MD04-00263.rtf) Auto-classification: Denied


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


ex-LCpl, USMC
Docket No. MD04-00263

Applicant’s Request
The application for discharge review was received on 20031121. 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 20040812. 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 HONORABLE CONDITIONS (GENERAL)/Misconduct-Pattern of misconduct (administrative discharge board required but waived), authority: MARCORSEPMAN Par. 6210.3.


PART I - APPLICANT’S ISSUES AND DOCUMENTATION


Issues, as stated
No issues were submitted by the Applicant.

 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)                891124 - 900904  COG

 Period of Service Under Review :
Date of Enlistment: 900905               Date of Discharge: 931029

 Length of Service (years, months, days):
         Active: 03 01 25
          Inactive: None
Age at Entry: 19                          Years Contracted: 4
Education Level: 12                        AFQT: 44

 Highest Rank: LCpl
Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.4 (6)                       Conduct: 4.1 (6)
Military Decorations: None

 Unit/Campaign/Service Awards: NDSM
Days of Unauthorized Absence: None

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

UNDER HONORABLE CONDITIONS (GENERAL)/Misconduct-Pattern of misconduct (administrative discharge board required but waived), authority: MARCORSEPMAN Par. 6210.3.

 Chronological Listing of Significant Service Events :

910116:  NJP for violation of UCMJ, Article 128:
 Specification: Assault on Pvt in the mouth with his fist on 0945, 910105.
 Awarded forfeiture of $170.00 per month for 1 month, restriction and extra duties for 14 days. Restriction and extra duty for 7 days suspended for 2 months. Not appealed.
910613:  Counseled for deficiencies in performance and conduct. [Alcohol related incident, specifically, drunk and disorderly conduct at 21 Area DelMar Club on 910505.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
910624:  NJP for violation of UCMJ, Article 92:
 Specification: Violate BO P5000.2H paragraph 11006.4d(1), to wit: wearing an earring in his left ear on 910609.
 Violation of UCMJ, Article 116:
 Specification: Participate in breach of peace by wrongfully engaging in a fist right on 0005, 910505.
Violation of UCMJ, Article 134:
 Specification: Drunk and disorderly on 0005, 910505.
 Violation of UCMJ, Article 95:
 Specification: Resist being apprehended by an armed forces policeman on 0005, 910505.
 Awarded forfeiture of $251.00 per month for 2 months, restriction and extra duties for 45 days. Forfeiture of 1 month suspended for 6 months. Not appealed.
910719:  Applicant completed NADSAP program.
911220:  Medical Officer found Applicant not dependent on alcohol. Recommend Level II.
920313:  Applicant completed Level II program.
920805:  Counseled for deficiencies in performance and conduct. [Failure to conform to minimum behavior, ethical and moral standards required of a U.S. Marine due to multiple incidents of physical violence, alcohol abuse and lack of discipline while in clubs on liberty aboard post.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
921123:  NJP for violation of UCMJ, Article 92:
 Specification Violate paragraph 11006.4d(1) on 920908, by wearing an earring.
 Awarded forfeiture of $200.00 per month for 1 month, restriction and extra duties for 30 days. Restriction for 15 days suspended for 6 months. Not appealed.
921230:  Applicant notified of intended recommendation for discharge under honorable conditions (general) by reason of misconduct due to a pattern of misconduct.
 930106:  Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

 930511:  Counseled for deficiencies in performance and conduct. [I have been counseled numerous times on being late for work/formation. I have been late for work twice this week.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
930727:  Applicant advised does not rate a hearing before an administrative board.
930727:  Commanding officer recommended discharge under honorable conditions (general) by reason of misconduct due to a pattern of misconduct. The factual basis for this recommendation was your three nonjudicial punishments.
930923:  Incorrect notification and acknowledgement.

 931007:  SJA review determined the case sufficient in law and fact.
931008:  GCMCA [Commanding General, I Marine Expeditionary Force, FMF] directed the Applicant's discharge under honorable conditions (general) 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 19931029 under honorable conditions (general) 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.

 When the service of a member of the Marine Corps has been honest and faithful, it is appropriate to characterize that service as honorable. A General discharge is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record. The Applicant’s service was marred by three nonjudicial punishment proceedings for six violations of the UCMJ to include violations of Article 128, assault, and Article 95 for resisting arrest. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Marine Corps and falls far short of that required for an upgrade of his characterization of service. Relief is not warranted.

The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and/or the reason for discharge if such change is warranted. There is no evidence of impropriety or inequity in the Applicant’s discharge. The Applicant’s misconduct is clearly documented. Therefore, relief is denied.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge. The Applicant can provide documentation to support any claims of post-service accomplishments or any other evidence related to his discharge at that time. 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 92, failure to obey order, regulation.
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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