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NAVY | DRB | 2004 Marine | MD04-00898
Original file (MD04-00898.rtf) Auto-classification: Denied


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

ex-PFC, USMC
Docket No. MD04-00898

Applicant’s Request
The application for discharge review was received on 20040507. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a personal appearance discharge review before a traveling panel closest to Jackson, MS. 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 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. 6210.3.


PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

“1. My name is M--------- SSN. I am requesting a review of my discharge. When I entered the U. S. Marine Corps, I was young and very immature. This was my first time being away form home and I realize that I made a lot of stupid decisions and mistakes regarding authority and integrity. And since then I have grown up and matured 110%. I am 25 years old now and am married with 2 children and to teach my children rules and how to not make the same mistakes. I have to learn the importance of rules and wise decisions. With the war going on and seeing my fellow soldiers, I would like to say that I’m an Honorable part of the U.S. Military. I have Honestly grown to be a Responsible Individual, since my time in the military to my family and the environment around me. I would like to be an Honorably Discharged veteran of the U.S. Marine Corps. To whom it may concern, Thank for your time. This is the end of my statement,”
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: USMC              None
         Inactive: USMCR(J)                960628   970623   COG

 Period of Service Under Review :
Date of Enlistment: 970624               Date of Discharge: 010202

 Length of Service (years, months, days):

         Active: 03 06 05
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 40

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.3 (8)                       Conduct: 4.1 (8)

 Military Decorations: None

 Unit/Campaign/Service Awards: RMB

 Days of Unauthorized Absence: 1

 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 :

960530:  Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.
980811:  NJP for violation of UCMJ, Article 86 (2 specs):
          Specification 1: UA (AWOL) from 0730, 980806 to 0835, 980806.
 Specification 2: UA (AWOL) from 0730, 980803 to 0745, 980803.
Awarded: forfeiture of $251.00 per month for 1 month (Total forf $251.00) and 7 days confinement to Correctional Custody Unit. Forf of $251.00 pay per month for 1 month suspended for 6 months, at which time, unless sooner vacated, the suspended forfeiture will be remitted w/o further action (Total forf susp $251.00). Not appealed.
990520:  NJP for violation of UCMJ, Article 121 (1 spec), Article 134 (1 spec):
 Article 121, Specification 1: Did steal military property, of some value, the property of the U.S. Government.
Article 134 Specification 1: Did wrongfully obtain telephone service of value by wrongfully using a U.S. Government telephone for unauthorized personal use.
Awarded: forfeiture of $558.00 per month for 2 months (Total forf $1116.00) and 15 days extra duties. Not appealed.
991116:  Summary Court-Martial.
 Charge I: Violation Art 86, UCMJ, Spec 1, UA (AWOL) from 0730, 991021 to 0800, 991021.
Violation Art 86, Spec 2, UA (AWOL) from 0700, 991020 to 2300, 991020.
Violation Art 86, Spec 3, UA (AWOL) from 1200, 991030 to 991102.
Charge II: Violation Art 92, UCMJ, Spec 1, Did disobey a lawful order issued by Sgt B_ to report to the Battalion Ball Brief.
Violation Art 92, Spec 2, Did disobey a lawful order issued by PMO not to drive on CLNC.
Violation Art 92, Spec 3, Did disobey a lawful order issued by 1stSgt C_ to prepare for a wall locker/JOB.
Violation Art 93, Spec 4, Did disobey a lawful order issued by Sgt B_ to be at work at 0730, 991101 by failing to report to work.
Charge III: Violation Art 107, UCMJ, Spec 1, Did w/intent to deceive, make a false official statement by stating “I work for Burger King and therefore I don’t have a military I.D. card”.
Violation Art 107, Spec 2, Did, w/intent to deceive, make a false official statement to LCpl E_ by stating “I’m going to see my lawyer and will not be coming into work today”.
Violation Art 107, Spec 3, Did, w/intent to deceive, by stating “I need Monday off so I can go see my lawyer and will be there all day”.
Findings:
Chg I: G; Spec 1, Chg I: NG; Spec 2, Chg 1: G; Spec 3, Chg 1: NG;
Chg II: G; Spec 1, Chg I: G; Spec 2, Chg II: G; Spec 3, Chg II: NG; Spec 4, Chg II: NG;
Chg III: G; Spec 1, Chg III: G; Spec 2, Chg III: G; Spec 3, Chg III: G
Sentence: To be reduced to E-2; to forf $717.00 pay per mo for 1 mo; to be cnfd for 30 das.
CA: 991116 Sentence approved and ordered executed.

991216:  Counseled for deficiencies in performance and conduct. [The following deficiencies in your performance and conduct are identified: Total absence of judgment, responsible behavior and complete disregard for lawful orders. Specifically, you were in violation of article 134, whereas on 11 Dec 99, 0410, you were discovered by the Maint Bn, OMC, DNCO, sleeping naked in your truck. Attempts to wake SNM (Applicant) were unsuccessful, when the door was opened by the DNCO to check the status of SNM, he responded by saying, “ S_ _ _ n_ _ _ _ _, its cold, close the door”. Further investigation revealed that Moore had been released that night from the Onslow County Jail and had been drinking with friends and decided to sleep it off in his truck, which was running at the time. SNM’s decision to place himself in his POV naked, (his trousers and briefs were pulled down to his ankles and his shirt was pulled up to his neck), while under the influence of alcohol with the engine running, knowing his drivers license was under suspension is a total disregard of good order and discipline and lawful orders. This conduct was irresponsible and inexcusable and will not be tolerated.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

000216:  Counseled for deficiencies in performance and conduct. [The following deficiencies in your performance and conduct are identified: Total absence of judgment and complete disregard for lawful orders. Specifically, your decision to drive your POV under a revoked driver’s license was irresponsible and inexcusable which consequently led to your arrest by the civil authorities.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

000229:  Counseled for deficiencies in performance and conduct. [The following deficiencies in your performance and conduct are identified: Lack of judgment, responsible behavior and disregard for lawful orders. Specifically, you were in violation of article 134, disorderly conduct and drunkenness. SNM’s (Applicant) actions resulted in a physical altercation resulting in treatment in the emergency room. During medical treatment a blood alcohol level was taken with a reading of 0.13. This conduct was irresponsible and inexcusable and will not be tolerated.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

000327:  Applicant successfully completes the IMPACT program conducted by the Alcohol Treatment Facility Naval Hospital Camp Lejeune, NC .

000808:  Counseled for deficiencies in performance and conduct. [The following deficiencies in your performance and conduct are identified: Lack of judgment, responsible behavior and disregard for lawful orders. Specifically, you were in violation of article 86, UA, checking in late from annual leave and UA from the Sand Jam working party. This conduct was irresponsible and inexcusable and will not be tolerated.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

001006:  Counseled for deficiencies in performance and conduct. [The following deficiencies in your performance and conduct are identified: Lack of judgment, responsible behavior and disregard for lawful orders. Specifically, you were in violation of civil law; weapons violation, carrying a concealed weapon. This conduct was irresponsible and inexcusable and will not be tolerated.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
001006:  Counseled for deficiencies in performance and conduct. [The following deficiencies in your performance and conduct are identified: Lack of integrity, judgment, and disregard for lawful orders. Specifically, cheating on the PFT by not running the entire 3 miles. This conduct was irresponsible and inexcusable and will not be tolerated.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
001029:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense and a pattern of misconduct as evidenced by “your arrest on 000919 by Onslow County for carrying a concealed weapon and your established pattern of misconduct.
001030:  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.

Not Dated:       Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense and his established a pattern of misconduct. The factual basis for this recommendation was “his arrest on 000919 by Onslow County for carrying a concealed weapon and his established pattern of misconduct.

010117:  SJA review determined the case sufficient in law and fact.

010122:  GCMCA, CG, 2d Force Service Support Group, 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 20010202 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. The Applicant contends that his youth and immaturity caused him to make “stupid decisions” and that since leaving the service he has “grown up and matured 110%”. 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 any documentation for the Board to consider. Relief denied.

 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 2 nonjudicial punishment proceedings for 2 violations of Articles 86, and violations of Article 121 and Article 134 of the UCMJ. In addition, the Applicant’s service includes a Summary Court-Martial for 3 violations of Article 86, 4 violations of Article 92, and 3 violations of Article 107. The Applicant has 6 counseling entries for deficiencies in 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 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 [or] her 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 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 for more than 30 days .
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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