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NAVY | DRB | 2004 Marine | MD04-00301
Original file (MD04-00301.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD04-00301

Applicant’s Request
The application for discharge review was received on 20031201. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requested a personal appearance hearing before the board in the Washington National Capital Region or a personal appearance before a traveling panel closest to Tyler, TX. The Applicant did not list a representative on his 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 DC 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 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 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 want my discharge upgraded. I will do what it takes. What do you want me to do?”
Documentation
The Applicant did not submit any additional documentation for the Board to consider.
Applicant marked the box "WILL NOT BE SUBMITTED. PLEASE COMPLETE REVIEW BASED ON AVAILABLE SERVICE RECORDS."

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR (J)               961123 - 970713  COG

 Period of Service Under Review :
Date of Enlistment: 970714               Date of Discharge: 010222

 Length of Service (years, months, days):

         Active: 03 07 09 (Dose not include lost time.)
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 88

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.2 (11)                      Conduct: 4.0 (11)

 Military Decorations: None

Unit/Campaign/Service Awards: CertApp, LtrApp (x2)

 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 :

000501:  NJP for violation of UCMJ, Article 86: … without authority, absent himself from his appointed place of duty.
 Violation of UCMJ, Article 91 (2 specs):
 Specification 1: … did … treat with contempt and was disrespectful in deportment toward … known … to be a Superior Non-Commissioned Officer.
Specification 2: … having received a lawful order from … known … to be a Non-Commissioned Officer … did willfully disobey the same.
 Violation of UCMJ, Article 92 (2 specs):
 Specification 1: … having knowledge of a lawful order … failed to obey the same by wrongfully driving on base.
Specification 2: … having knowledge of a lawful order … failed to obey the same by wrongfully driving his privately owned vehicle to the field.
Awd red to E-2, forf of $350.00 per month for 2 months and 45 days restriction and extra duties. Appealed.
000504:  Counseled for deficiencies in performance and conduct. [Applicant’s violation of Articles 91 and 92 of the UCMJ.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
000606:  SJA review determined the case sufficient in law and fact.

000612:  Appeal denied.

 000823:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 86.
         Specification: … did … without authority, fail to go … to his appointed place of duty …
         Charge II: violation of the UCMJ, Article 92 (3 Specifications):
         Specification 1: … wrongfully going to Mexico without authorization on 5 May 2000 …
         Specification 2: … wrongfully going to Mexico without authorization on 12 May 2000 …
         Specification 3: … having knowledge of a lawful order … did … fail to obey the same by wrongfully driving a vehicle aboard a military installation.
         Charge III: violation of the UCMJ, Article 134 (2 Specifications):
         Specification 1: … did … on or about 5 May 2000, break restriction.
         Specification 2: … did … on or about 12 May 2000, break restriction.
         Findings: To Charge I and specification thereunder, guilty. To Charge II and specification 1 thereunder, guilty; to specification 2 under Charge II, guilty; and to specification 3 under Charge II, guilty. To Charge III and specification 1 thereunder, guilty; to specification 2 under Charge III, guilty. 
         Sentence: Red to E-1, forf of 2/3 pay per mo for 1 mo., and 30 days conf.
         CA action 000823: Sentence approved and ordered executed.
        
000911:  Applicant’s signed waiver of administrative separation board in compliance with Summary Court-Martial pre-trial agreement.

000911:  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 a Squadron NJP held on 1 May 2000 and a Summary Court-Martial held on 23 August 2000.
000911:  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.

000915   Preliminary Inquiry for Administrative Separation of (Applicant). Recommendations: … (Applicant) should be administratively discharged per paragraph 6210.3 of the MARCORSEPMAN …

001023:  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 a Squadron NJP held on 1 May 2000 and a Summary Court-Martial held on 23 August 2000.

010123:  SJA review determined the case sufficient in law and fact.

010625:  GCMCA [Commanding General, 3d Marine Aircraft Wing] 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 20010222 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 Applicant did not introduce any decisional issues for the Board’s consideration. A service characterization 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. The Applicant’s service was marred by award of nonjudicial punishment (NJP) for unauthorized absence, insubordinate conduct and failure to obey orders . Additionally, the Applicant plead guilty and was found guilty at a Summary Court-Martial, subsequent to his NJP, for unauthorized absence, failure to obey orders and breaking restriction. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflected his disobedience of the orders and directives, which regulate good order and discipline in the naval service. His actions fell short of that required for an honorable characterization of service. An upgrade would be inappropriate. Relief 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 P1900.16E), 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 134, Breaking 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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