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NAVY | DRB | 2004 Marine | MD04-00943
Original file (MD04-00943.rtf) Auto-classification: Denied


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

ex-PVT, USMC
Docket No. MD04-00943

Applicant’s Request
The application for discharge review was received on 20040518. 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. 6210.3.





PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

No issues were submitted by the Applicant.

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)                971001 - 980817  COG

 Period of Service Under Review :
Date of Enlistment: 980818               Date of Discharge: 000302

 Length of Service (years, months, days):

         Active: 01 06 12         [Does not exclude lost time]
         Inactive: None
Age at Entry: 19                          Years Contracted: 4

Education Level: 12                        AFQT: 34

 Highest Rank: PFC                          MOS : 9900

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.1 (3)                       Conduct: 3.0 (3)

 Military Decorations: None

 Unit/Campaign/Service Awards: REB

 Days of Unauthorized Absence: 26

 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 :

990211:  Counseled for deficiencies in performance and conduct. [Unauthorized absence.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
990217:  NJP for violation of UCMJ, Article 86: UA (AWOL) from 1501, 990109 to 1730, 990204 from MATCo, HqSptBn, SOI, MCB, CamLej.
 Awarded forfeiture of $479.00 pay per month for 2 months, restriction and extra duties for 45 days, reduction to E-1. Not appealed.
990803:  Special Court-Martial.
         Charge I: violation of the UCMJ, Article 121,
         Specification 1: Larceny of U.S. Currency in excess of $100.00.
         Charge II: violation of the UCMJ, Article 123, (2 Specifications),
         Specification 1: Intent to defraud; Specification 2: Intent to defraud. Charge III: violation of the UCMJ, Article 134, (2 Specifications), Specification 1: Wrongfully make and utter; Specification 2: Wrongfully make and utter.
         Findings: to Charge I and specification 1 thereunder, withdrawn. To Charge II and specifications 1 and 2 thereunder, guilty. To Charge III and specifications 1 and 2 thereunder, withdrawn.
         Sentence: Fine of $600.00 pay per month for 6 months, confinement for 6 months.
         CA 991015: Sentence approved and ordered executed.
000126:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.
000126:  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.
000126:  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 Battalion NJP of 990217, and Special Court-Martial conviction of 990803.

000217:  SJA review determined the case sufficient in law and fact.

000229:  GCMCA [Commander, Marine Corps Base, Camp Lejeune, North Carolina] 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 20000302 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).

The Applicant introduced no decisional issues for the Board to consider. 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 nonjudicial punishment proceedings for a violation of Article 86 of the UCMJ and court-martial conviction for violations of Article 123 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 Marine Corps and falls far short of that required for an upgrade of his characterization of service. Relief is not warranted.

The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and/or the reason for discharge if such change is warranted. There is no evidence of impropriety or inequity in the Applicant’s discharge. The Applicant’s misconduct is clearly documented. Therefore, relief is 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. 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 123, Forgery, intent to defraud.

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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