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NAVY | DRB | 2004 Marine | MD04-00346
Original file (MD04-00346.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD04-00346

Applicant’s Request
The application for discharge review was received on 20031218. The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions. The Applicant requests a personal appearance hearing before a traveling panel closest to South Carolina. In the acknowledgment letter, the Applicant was informed that the Board does not travel and all hearings are held in Washington, D.C. He was also advised that his case would first receive a documentary record 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 20050210. 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:

1. “The reason I’ve made this request is I was young and in a different state of mind. I was under the influence of alcohol. Since then I have quit drinking. Also I’ve grown up a lot. Another problem I had was I was married, & while I was overseas she got pregnant by another man. I lost a lot and feel into a low spat in my life, but now I’ve realized that I made a mistake in giving up. I would really like a chance to fix it. By upgrading my discharge & RA code I can get back in the military. Thank you for your consideration in this matter.”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                971230 - 980104  COG

 Period of Service Under Review :
Date of Enlistment: 980105               Date of Discharge: 990813

 Length of Service (years, months, days):

         Active: 01 07 09
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 48

 Highest Rank: LCpl                         MOS: 2512

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.9 (5)                       Conduct: 3.7 (5)

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR, REB

 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 :
981117:  NJP for violation of UCMJ, Article 86 (4 specs):
 Specification 1: UA from 0645 to 1630, 981031.
Specification 2: UA from 0645 to 1030, 981101.
Specification 3: UA from 0645 to 0930, 981115.
Specification 4: UA from 0345 to 0515, 981117.
Violation of UCMJ, Article 92: Underage drinking.
Awarded forfeiture of $519.00 per month for 2 months, restriction and extra duties for 45 days, reduced to PFC. Not appealed.
981221:  Counseled for deficiencies in performance and conduct. [Failure to report to place of duty on four occasions and consuming alcohol under the legal drinking age.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
990210:  Counseled for deficiencies in performance and conduct. [Refusal to prepare and display uniforms for serviceability and accountability inspection held on 990203. Disrespect to your Platoon Sergeant. Failure to report to physical therapy on five occasions. Failure to obey orders.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
990415:  NJP for violation of UCMJ, Article 92 (3 specs).
 Specification 1: Leaving Camp Foster while in a Liberty Risk status on 990314.
Specification 2: Leaving Camp Foster in civilian attire while in a Liberty Risk status on 990314.
Specification 3: Disobeyed order of SgtMaj N_ “not to talk to or go near PFC B_.”
Violation of UCMJ, Article 86: UA from 0730-0930, 990413.
Violation of UCMJ, Article 134: Wrongfully having sexual intercourse with PFC B_, a woman not his wife.
Awarded forfeiture of $479.00 per month for 2 months, restriction and extra duties for 45 days, reduction to Pvt. Not appealed.
990603:  Summary Court-Martial.
 Charge I. Violation of UCMJ, Article 86 (3 specs): Failure to go to restriction muster.
Charge II. Violation of UCMJ, Article 90: Willfully disobeyed order of LtCol M_ to muster in the uniform of the day.
Charge III. Violation of UCMJ, Article 91 (4 specs): Disrespectful in language to Sgt P_ and Cpl V_, and disobeying the orders of Sgt P_ and Cpl V_.
Finding. Guilty to all charges and specifications.
Sentence. Forfeiture of 2/3 pay for one month and 30 days confinement.
990708:  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 the adverse matter in his service record.
990708:  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.
990715:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

990722:  SJA review determined the case sufficient in law and fact.

Undated:         GCMCA [Commander, 1 st MAW] 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 19990813 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. 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. The Applicant’s service was marred by award of nonjudicial punishment (NJP) on two occasions for unauthorized absences, disobedience of lawful orders and adultery. The Applicant also received a summary court-martial for another unauthorized absence, disobedience of the lawful orders of both non-commissioned and commissioned officers, and received adverse counseling entries on other occasions for further misconduct. While he may feel that his marital problems and alcohol use at the time were factors that contributed to his actions, the record clearly reflects his disregard for the requirements of military discipline and demonstrated that he was unfit for further service. The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.
Concerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces. Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment. A request for waiver is normally done only during the processing of a formal application for enlistment through a recruiter.

The Applicant’s discharge characterization accurately reflects his service to his country. Normally, to permit relief, an inequity or impropriety must have existed during the period of enlistment in question. No such inequity or impropriety 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 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 90, disobedience of the orders of a commissioned officer; Article 91, disobedience of the orders of a non-commissioned officer; Article 92, disobey a lawful order; and Article 134, adultery.
C. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

D. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety .

 E. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity .

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 “ http://Boards.law.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:

                  Secretary of the Navy Council of Review Boards
                   Attn: Naval Discharge Review Board
                   720 Kennon Street SE Rm 309
                  Washington Navy Yard DC 20374-5023

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