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NAVY | DRB | 2004 Marine | MD04-00682
Original file (MD04-00682.rtf) Auto-classification: Denied


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


ex-Pvt, USMC
Docket No. MD04-00682

Applicant’s Request
The application for discharge review was received on 20040316. 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 discharge review before a traveling panel closest to Los Angeles, CA. The Applicant did not list any representative on the 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 20041008. 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 3-2 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. “I contend that my Other Than Honorable Discharge should be upgraded to General Under Honorable Conditions and that the narrative reason of for separation be changed from Misconduct Due To A Pattern Of Misconduct to Weight Control Failure. My reasons and basis for this contention is as follows:
I enlisted for a period of 4 years and served for 3 years, 9 months and 11 days without any time lost. I recognize that I had a weight control problem, but the non-judicial punishments I received for being absent or late from my appointed place of duty is not, in my opinion, serious misconduct that warrants a discharge under Other Than Honorable Conditions.
If the positive aspects of my performance did not outweigh the weight control problem. I should not have been allowed to nearly complete my entire 4-year enlistment. My average proficiency and conduct marks in service were Excellent to Average.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Chronological series of events list for October 2, 1995 to June 10, 1999
Applicant’s DD Form 214
 Ninety-five pages from Applicant’s service and medical records

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
          Inactive: USMCR(J)                950125 - 951001  COG
Period of Service Under Review :
Date of Enlistment: 951002               Date of Discharge: 990713

 Length of Service (years, months, days):
         Active: 03 09 12
          Inactive: None
Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 68
Highest Rank: LCpl                         MOS: 3521

 Final Enlisted Performance Evaluation Averages (number of marks):*
Proficiency: 4.5 (7)                       Conduct: 4.2 (7)

 Military Decorations: None
Unit/Campaign/Service Awards: NDSM, CoC, RSB

 Days of Unauthorized Absence: None
*Marks extracted from supporting documents provided by the Applicant .

 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 :

970220:  Counseled for deficiencies in performance and conduct. [Failure to maintain Marine Corps height and weight standards, and understand that my condition is not a result of a physical condition.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
980714:  Applicant informed eligible but not recommended for promotion to Corporal due to weight control military appearance in accordance with MCO P1400.32B PAR 3F through 3N.
980903:  Counseled for deficiencies in performance and conduct. [Failure to be at your appointed place of duty: i.e. remedial PT and formation.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
981001:  NJP for violation of UCMJ, Article 86:
 Specification: Unauthorized absence from 0715-0800, 980922.
 Awarded forfeiture of $276.00 per month for 1 month, restriction and extra duties for 14 days. Forfeiture suspended for 6 months. Not appealed.
981106:  Vacate suspended forfeiture awarded at CO’s NJP dated 981001.

 981111:  NJP for violation of UCMJ, Article 86:
 Specification: Absent from appointed place of duty on 0600, 981016.
 Awarded forfeiture of $591.00 per month for 2 months, restriction for 45 days. Forfeiture and restriction suspended for 6 months. Not appealed.
981112:  Counseled for deficiencies in performance and conduct. [Failure to be at my appointed place of duty which has resulted in Company and Battalion level NJP, lackadaisical attitude, and my failure to meet the Marine Corps height and weight standards.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
981220:  Applicant informed eligible but not recommended for promotion to corporal for the promotion period January-June 1999 due to weight control.
990204:  Vacate suspended forfeiture, restriction and reduction awarded at CO’s NJP dated 981111.
990318:  NJP for violation of UCMJ, Article 86:
 Specification 1: Absent from appointed place of duty on 0600-0745, 990125.
 Awarded forfeiture of $251.00 per month for 1 month, restriction and extra duties for 14 days. Forfeiture suspended for 6 months. Not appealed.

990601:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.
990601:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

990602:  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.
990609:  GCMCA [Commanding General, 1 st Marine Division (Rein), Camp Pendleton, CA] 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 19990713 under other than honorable conditions for misconduct due to a pattern of misconduct (A). The Board presumed regularity in the conduct of governmental affairs (B). 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 (C and D).
Issue 1. The Applicant states, “… the non-judicial punishments I received for being absent or late from my appointed place of duty is not, in my opinion, serious misconduct that warrants a discharge under Other Than Honorable Conditions.” An Under Other Than Honorable Conditions 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 three violations of Article 86 of the UCMJ. Suspended punishments awarded at NJP were vacated twice, indicating further misconduct. The Applicant was also subject to three counselings for performance and conduct. 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 Applicant contends that his “narrative reason for separation should be changed from Misconduct Due to a Pattern of Misconduct to Weight Control Failure.” The Applicant’s service record is marred by award of nonjudicial punishment (NJP) on three separate occasions, thus substantiating the narrative reason for separation. No other Reason for Separation could more clearly describe why the Applicant was discharged. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. In the Applicant’s case, the Board could discern no impropriety or inequity and therefore consider his discharge proper and equitable. 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. 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. 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.

C. 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.

 D. 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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