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NAVY | DRB | 2004 Marine | MD04-00715
Original file (MD04-00715.rtf) Auto-classification: Denied


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

ex-PFC, USMC
Docket No. MD04-00715

Applicant’s Request
The application for discharge review was received on 20040324. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. 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 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 unanimous that the character of the discharge shall not change. The discharge shall remain: GENERAL (UNDER 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: Was not allowed to appeal my first NJP. Also was not allowed to get counsel. NJP for UA which my libo chit was signed by my SGTMAJ .

ISSUE 2: Several request mast were denied when I tried to appel my 2 nd NJP.

ISSUE 3: Had no chance to fight my Admin Seperation. I request to go to a court martial to fight the charges against me but was denied.

ISSUE 4: My SNCO denied me promotion several times. He also told me quote “that females don’t belong in the Marine Corps”. After, all this is when the NJP’s started.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s statement, dated February 14, 2004
Twenty-nine pages from Applicant’s service record

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                990220 - 990718  COG

 Period of Service Under Review :
Date of Enlistment: 990719               Date of Discharge: 020619

 Length of Service (years, months, days):

         Active: 02 11 01
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 37

 Highest Rank: LCpl                         MOS: 7041

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.2 (Unknown)                         Conduct: 4.0 (Unknown)

 Military Decorations: None

 Unit/Campaign/Service Awards: RMB, NDSM, SSDR, CoC, LoA

 Days of Unauthorized Absence: None

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: MARCORSEPMAN Par. 6210.3.

 Chronological Listing of Significant Service Events :

000121:  Counseled for deficiencies in performance and conduct. [Loss of my Armed Forces Identification Card (AFID) and the possible ramifications of the loss.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
010615:  Counseled for deficiencies in performance and conduct. [Violation of Article 91 and 92 of the UCMJ: Disobeying a lawful order and insubordination. Specifically, on or about 010510, you attempted to depart the USS Essex for liberty wearing an inappropriately short dress. You were directed by your SNCOIC to change your attire. You then asked the Maintenance Chief and SgtMaj for permission to wear the dress anyway. You were again told to change your clothing, which you eventually did. On or about 010513, you were observed on liberty wearing the same dress resulting in your SNOIC counseling you and the SgtMaj suspending your liberty. Following the event, you lied to the Maintenance Chief telling him you altered the dress. When the SgtMaj reinstated your liberty, you withheld the truth of not having altered it, thereby lying to him as well. Seeking consent from Marines senior to your SNCOIC after he issued an order to you is insubordinate. Purposefully fabricating the truth and then neglecting to tell the SgtMaj that he was misinformed is lying. Conduct such as this is counter to the good order and discipline of a Marine Corps Unit and will not be tolerated.] Necessary corrective actions explained, sources of assistance provided.
010625:  Applicant informed eligible but not recommended for promotion to Corporal for the months of July, August, and September due to lack of professionalism.

011107:  Applicant informed eligible but not recommended for promotion to Corporal for the month of December because of recent page 11 entry.

011108:  Counseled for deficiencies in performance and conduct. [Dereliction of duties, making false official statements, and disrespect toward an NCO. Specifically, for not staying in the office for upcoming schedule changes when instructed to do so, making false official statements when questioned, not once but twice, questioning authority, and disrespecting an NCO by cursing and raising my voice.] Necessary corrective actions explained, sources of assistance provided.
011116:  NJP for violation of UCMJ, Article 90:
 Specification: Having received a lawful command order from the CO HMM-265 to have her overnight liberty card denied on 011103 and 011104 willfully disobeyed the same.
Violation of UCMJ, Article 86 (2 specs):
Specification 1: Unauthorized absence from 0001-0630, 011103.
Specification 2: Unauthorized absence from 0001-0630, 011104.
Awarded restriction for 60 days, reduction to E-2. Reduction suspended for 3 months. Not appealed.
011116:  Counseled for deficiencies in performance and conduct. [Lack of professionalism, leadership and reliability. Specifically your failure to follow Marine Corps rules and regulations that resulted in your recent NJP.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

011205:  Applicant informed eligible but not recommended for promotion to Corporal for the month of January because of recent NJP.

020201:  Applicant informed eligible but not recommended for promotion to Corporal for the month of March because of recent NJP.

020226:  Applicant informed eligible but not recommended for promotion to Corporal for the month of March because of recent NJP.

 020312:  NJP for violation of UCMJ, Article 107:
 Specification: Make a false official statement to the Squadron Duty Officer on 020104.
Violation of UCMJ, Article 134:
Specification: Break restriction on 020104.
Awarded restriction for 30 days, reduction to E-2. Appealed 020319 . Appeal denied 020322.
020312:  Counseled for deficiencies in performance and conduct. [Violation of Articles 107 and 134 of the UCMJ. Failure to obey regulation, Article 107, on 020104, with an attempt to deceive, make an official statement to the Squadron Duty Officer Captain A_ which was false, and which was then known by LCpl R_ (Applicant) to be false. Article 134, having been restricted from the Post exchange by the Commanding Officer, a person authorized to do so, did on or about 020104, break said restriction.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
020325:  Counseled for deficiencies in performance and conduct. [Breaking restriction and issuing a false statement to a commissioned officer. Your actions were violations of Articles 107 and 134 of the UCMJ and resulted in your receiving nonjudicial punishment on 020313.] Necessary corrective actions explained, sources of assistance provided.
020405:  Applicant informed eligible but not recommended for promotion to Lance Corporal for the month of May because of recent NJP.

020501:  Applicant advised of rights and having consulted 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.
020502:  Applicant notified of intended recommendation for discharge general (under honorable conditions) by reason of misconduct due to a pattern of misconduct.
UNDATED:         Applicant’s statement.

020502:  Commanding Officer recommended discharge general (under honorable conditions) by reason of misconduct due to a pattern of misconduct. The factual basis for this recommendation was Applicant’s established pattern of misconduct as evidenced by her five derogatory page 11 entries and two nonjudicial punishments for various orders violations, unauthorized absence, disrespect to a NCO, and making false statements. Despite efforts to encourage her toward honorable, productive service, she has responded with further acts of misconduct. By her actions, she has demonstrated that she has absolutely no potential for further military service.

020510:  SJA review determined the case sufficient in law and fact.

020510:  GCMCA [Commander, 1 st Marine Aircraft Wing] directed the Applicant's discharge general (under 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 20020619 with a general (under 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).

 Issues 1-4. The Board’s regulations limit its review to a determination on the propriety and equity of the discharge. The Applicant was properly afforded all rights regarding her processing for administrative separation. The Board found nothing in the service record to support her claim that she was denied any rights regarding the nonjudicial punishments she accepted while on active duty. A characterization of service of under honorable conditions (general) 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 award of nonjudicial punishment (NJP) on two occasions and adverse counseling entries on other occasions. The Applicant’s conduct, which forms the primary basis for determining the character of her service, reflects her 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 characterization of service. The evidence of record does not demonstrate that the Applicant was not responsible for her conduct or that she should not be held accountable for her actions. An upgrade to honorable is inappropriate. Relief denied.

The Applicant’s discharge characterization accurately reflects her service to her 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 denied.

The Applicant is reminded that she remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of her 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 90, disobeyed a commissioned officer; Article 107, false official statements; and Article 134, break 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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