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NAVY | DRB | 2004 Marine | MD04-00508
Original file (MD04-00508.rtf) Auto-classification: Denied


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

ex-LCpl, USMC
Docket No. MD04-00508

Applicant’s Request
The application for discharge review was received on 20040203. The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions. The Applicant requests 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 20041001. 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. “In order to be able to re-enlist into the Marine Corps.”

 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)                991008 - 000814  COG

 Period of Service Under Review :
Date of Enlistment: 000815               Date of Discharge: 030530

 Length of Service (years, months, days):

         Active: 02 09 16
         Inactive: None

 Age at Entry: 19                          Years Contracted: 5

 Education Level: 12                        AFQT: 82

 Highest Rank: LCpl                         MOS : 6112

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.1 (7)                       Conduct: 3.9 (7)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

 Days of Unauthorized Absence: 13

 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 :

010119:  Counseled for deficiencies in performance and conduct. [Failure to obey order or regulation on 010104 in that SNM was directed by SSgt R_ to have clean and pressed utilities while in student status at CH-46 FREST. By 010119 SNM had failed to obey this order. General article (clause 2) conduct of a nature to bring discredit upon the armed forces. In that on 010119 SNM reported to the school house non-shaven and emanating extremely bad body odor. This lack of hygiene has been brought to SNM’s attention numerous times.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
010207:  Counseled for deficiencies in performance and conduct. [Failure to obey order or regulation. In that on 010207 SNM’s carrel was unsecured, rack was not made, and trash was not taken out which is against barracks regulations.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
020710:  Counseled for deficiencies in performance and conduct. [Failure of Command PFT with a run time of 30.38 is not in accordance with MCO 6100.12.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
020715:  Counseled for deficiencies in performance and conduct. [Improper use of Government Travel Card, in that you willingly and knowingly charged $1814.17 in debt from 28 March through 29 April 2002 without being in an approved TAD status which violates standing Marine Corps Regulations.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
020809:  Counseled for deficiencies in performance and conduct. [On July 23 a warrant for your arrest on two cases of issuance of a worthless check, case numbers issued by the Onslow County Sherifffs Department are #02CR 055017 and #02CR 056426. On August 2, 2002 another warrant was issued for your arrest on Obtaining Property Under False Pretenses (a Felony in North Carolina), case number issued by Onslow County Sheriffs Department #02CR 058138. You were taken to MCAS New River Joint Legal Center on 0900 on August 7 where a detective from the Jacksonville Police Department arrested you. You have committed a serious felony and have written worthless checks in the Jacksonville community, this has brought great discredit upon the Marine Corps and tarnished the image of all Marines. These offenses are serious and will not be tolerated by the Marine Corps, or this command. These actions on your part, are very serious issues and will not be taken lightly; these actions will be acted upon and brought to resolution quickly. However these actions will not release you from your duties and responsibilities as a Marine. Remember your Corps values of Honor, Courage and Commitment.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
020809:  Counseled for deficiencies in performance and conduct. [On February 23, 2002 at 0121 you were admitted to Camp Lejeune Naval hospital emergency room for attempted suicide and subsequently transferred out to ICU for recovery. This took place a day before you were to go on a six-month deployment; you were unable to fulfill your duties because of your attempted suicide. It was later determined that the quantity and type of pills taken were not life threatening. A Preliminary Inquiry for Line of Duty/Misconduct Determination was conducted. Medical personnel discharged you from the hospital on February 26, 2002 being determined as fit for duty; with only follow up counseling scheduled. Making suicidal ideations/comments is a very serious issue and will not be acted on and treated quickly, by having you see the appropriate medical personnel. However making suicidal statements/actions will not release you from your duties and responsibilities as a Marine.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

020813:  NJP for violation of UCMJ, Article 86 (2 specs):
 Specification 1: Absent from appointed place of duty on 1200, 020716-020729 (13 days).
Specification 2: On 0830, 920809, SNM reported to work when he was instructed on 020808 to report at 0630 in green on green for Squadron PT.
Violation of UCMJ, Article 91:
Specification: Insubordinate conduct toward Noncommissioned Officer, on 1045, 020801, to wit: SNM was being reprimanded by a NCO and while being counseled, he responded in a disrespecting tone of voice.
Violation of UCMJ, Article 92:
Specification: Failure to obey order and regulation on 1000, 020729 SNM was instructed to clean quarters by Squadron 1stSgt, upon returning for reinspection, SNM quarters were still unsat. Failing to follow a direct order.
Awarded forfeiture of $619.00 per month for 1 month, extra duties for 45 days, reduction to E-2 (forfeiture and reduction suspended for 6 months). Not appealed.
020830:  Counseled for deficiencies in performance and conduct. [On August 28, 2002, your computer was screened for pornographic material at the request of the Commanding Officer, Marine Aircraft Group 26 (MAG-26), Aviation Information Systems Department/MAG-26 S-6, found under your computer profile that you had been viewing pornographic websites on government computers and storing pornographic pictures on government computers. This is against Marine Corps Orders. This offense is serious and will not be tolerated by the Marine Corps, or this command.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
030306:  Counseled for deficiencies in performance and conduct. [Frequent involvement with civilian authorities concerning your inability to manage funds, on 021122 you were taken into custody by the Onslow County Sheriffs Department for 27 counts of worthless checks. As a result you were placed on two years of supervised probation. Monthly payment plans were also put in effect. These are serious offenses and will not be tolerated by the Marine Corps or this command. However these actions will not release you from your duties and responsibilities as a Marine. Remember your Corps values of Honor, Courage and Commitment.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
030311:  Counseled for deficiencies in performance and conduct. [Failure to meet the semi-annual body composition evaluation for the 1 st half CY2003. You are therefore assigned to the squadron’s body composition program as of 030311 in order to correct this deficiency within 6 months assignment period.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
030423:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.
030423:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

030423:  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 your numerous violations of the Uniform Code of Military Justice during this enlistment as evidenced by your nonjudicial punishment of 020813 and numerous adverse counseling entries. Furthermore, your frequent discreditable involvement with civilian authorities, specifically your criminal convictions on 021127 for 27 counts of worthless checks, on 030127 for two counts of worthless checks, and on 030130 for misdemeanor larceny.

030528:  SJA review determined the case sufficient in law and fact.

030528:  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.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030530 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. T he Applicant’s service was marred by award of nonjudicial punishment (NJP) on one occasion, civil convictions, and 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 which regulate good order and discipline in the naval service, and falls short of that required for an honorable or under honorable (general) characterization of service. An upgrade is inappropriate. Relief denied.

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. The discharge was proper and equitable. 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 P1900.16F), 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; and Article 92, disobey a lawful order.
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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