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NAVY | DRB | 2004 Marine | MD04-00888
Original file (MD04-00888.rtf) Auto-classification: Denied


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

ex-PVT, USMC
Docket No. MD04-00888

Applicant’s Request
The application for discharge review was received on 20040505. 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 discharge 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 20041022. 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. 6210.6.

 The NDRB did note administrative error(s) on the original DD Form 214. Block 12.a., Date Entered AD This Period, should read: " 2001 04 24” vice “2001 04 11” and Block 12.c., Net Active Service This Period, should read: "01 02 15” vice “ 01 03 12." The Commandant, Headquarters USMC, Quantico, VA, will be notified, recommending the DD Form 214 be corrected or reissued, as appropriate.








PART I - APPLICANT’S ISSUES AND DOCUMENTATION


 Issues, as stated

Applicant’s issues, as stated on the application:

 “1. My Other Than Honorable discharge was inequitable because it was based on one isolated incident in 15 months of service with no other adverse action.

2. The discharge was inequitable because, I was acting as an ordinary human being whose family feels life is under pressure because of the circumstance. So, I did what anyone would do to protect his family, find out what is going on in full.

3. My discharge was unfair due to the fact of what I was accused of was proven wrong by DNA & viral tests. So to save embarrassment or questions brought up, I was given a charge that they can process w/no questions asked. And I receive what I wanted, to be there for my family.

4. Refer to my medical records that were put on file, that show tests done at the brig & Naval Hospital.

5. I feel that my discharge was also rush & brought on due to my medical condition at the time. (My back & leg problems) I was on crutches, then put on a cane. My doctor appts took me away from training. So, I was deemed useless.”


Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of Character Reference from N_C_, not dated
Copy of National Pool and Waterpark Lifeguard Training Program Completion, dtd   October 14 th , 2003

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              None
         Inactive: USMCR(J)                010411 - 010423  COG

 Period of Service Under Review :
Date of Enlistment: 010424               Date of Discharge: 020723

 Length of Service (years, months, days):

         Active: 01 02 15
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

Education Level: 12                        AFQT: 54

 Highest Rank: PFC                          MOS: 0811

Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.7 (4)                       Conduct: 3.4 (4)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, 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. 6210.6.

 Chronological Listing of Significant Service Events :

010409:  Initial enlistment contract documents admission of pre-service marijuana experimentation. Enlistment waiver granted. Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

020524:  Applicant’s statement to NCIS Agent admits that he met with and                            and spoke to L_A_C_ on 23 May 02.

020709:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense as evidenced by past offenses.
020709:  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.

020709:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 92.
         Specification: In that Pvt B_, USMC, Fox Battery, 2d Battalion, 10 th Marines, Camp Lejeune, NC, did, on or about, having knowledge of a lawful order issued by MgySgt B_, a SNCO, then known by the SNM (Applicant) to be a SNCO, to not have any contact with L_A_C_, or words to that effect, and order which it is his duty to obey, did, at or near Camp Lejeune, NC on or about 020523, fail to obey the same by driving with L_A_C_ as a passenger in the said named Marine’s (Applicant) vehicle.
         Finding: to Charge I and the specification thereunder, guilty.
         Sentence: Forfeiture of $736.00. to be confined for (29) days, to be reduced to the grade of E-1.
         CA action 020710: Sentence approved and ordered executed.
        
020710:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense. The factual basis for this recommendation was the respondent’s (Applicant) continued misconduct: “Private B_ should be administratively separated for commission of a serious offense based on his improper relations with L_C_, a 12- year-old minor. Private B_ disobeyed a lawful order to have no contact with L_C_ after an investigation was conducted into allegations that he had sexual relations with this 12-year-old child. Private B_ failed to obey this order and was found on the evening of 23 May 2002 with L_C_ in his vehicle. He was the subject of a summary court martial on 9 July 2002 for failure to obey this order, pleaded guilty and was found guilty. His actions and immoral conduct show a total lack of trust and honor, and prove that he is a danger to L_C_ and other children in this community. His average proficiency and conduct marks are 3.7/3.4 . I strongly believe that the retention of Private B_ would adversely affect the morale, discipline, and well being of this battalion, the Marine Corps and the Camp Lejeune community. Private B_ should be administratively separated from the Marine Corps in an expeditious manner.

020715:  SJA review determined the case sufficient in law and fact.

020719:  GCMCA, CG 2d Marine Division, directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030723 under other than honorable conditions for misconduct due to the commission of a serious offense (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 states that his discharge was “inequitable because it was based on one isolated incident in 15 months of service with no other adverse action.” When the service of a member of the U.S. Marine Corps has been honest and faithful, it is appropriate to characterize that service as honorable. 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. T he Applicant’s service was marred by a Summary Court- Martial for a violation of Article 92 of the UCMJ. 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.
Issue 2. The Applicant contends his disciplinary problems were the result of stress caused by family situation. The NDRB recognizes that serving in the U.S. Marine Corps is challenging. Our country is fortunate to have men and women willing to ensure the hardships and sacrifices required in order to serve their country. It must be noted that most members of the Marine Corps serve honorably and therefore earn their honorable discharges. In fairness to those members of the Marine Corps, commanders and separation authorities are tasked to ensure that undeserving Marines receive no higher characterization than is due. The NDRB found that the Applicant's service was equitably characterized. Relief denied.

Issues 3-4. The Applicant contends that his “discharge was unfair due to the fact of what I was accused of was proven wrong by DNA & viral tests.” The Applicant pled guilty and was found guilty to a violation of the UCMJ, Article 92, failure to obey a lawful order. DNA and Viral tests were not used to support the findings of the summary court-martial. Relied denied.






Issue 5. The Applicant contends that “my discharge was also rush & brought on due to my medical condition at the time.” In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable. The record contains no evidence of any wrongdoing by anyone in the discharge processing. The Board presumes regularity in the conduct of governmental affairs in the absence of persuasive evidence to the contrary. As such, this Board presumed that Applicant’s discharge was regular in all respects. Relief denied.

The following is provided for the edification of the Applicant. Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question. The Board discovered no impropriety after a review of Applicant’s case. 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 naval service. The NDRB is authorized, however, to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review. Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities. As of this time, the Applicant has not provided sufficient documentation for the Board to consider. 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 01 September 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 92, failure to obey order, regulation.

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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