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NAVY | DRB | 2004 Marine | MD04-00945
Original file (MD04-00945.rtf) Auto-classification: Denied


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

ex-LCPL, USMC
Docket No. MD04-00945

Applicant’s Request
The application for discharge review was received on 20040517. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. 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 20041222. 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 – Pattern of misconduct (administrative discharge board required but waived), authority: MARCORSEPMAN Par. 6210.3.







PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

 “ I was discharged due to pattern of misconduct. Upon receiving my Article 15’s before my discharge I was aware of the appeal but not the process. In particular the rifle range and military ID charges. I was specifically told that I could not refuse to sign. The final incident. I requested to go home to attend a family crisis concerning my mother, I was denied by my superiors and forced to do or make the wrong decision. I am a desert storm veteran who was one of the first in my unit to step forward in ranks to volunteer. I thank you for your consideration. ”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
         None submitted

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                871123- 880719   COG

 Period of Service Under Review :
Date of Enlistment: 880720               Date of Discharge: 920409

 Length of Service (years, months, days):

         Active: 03 08 20
         Inactive: None

 Age at Entry: 17                          Years Contracted: 4

Education Level: 12                        AFQT: 37

 Highest Rank: LCpl                         MOS: 2512

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.4 (13)                      Conduct: 4.2 (13)

 Military Decorations: None

 Unit/Campaign/Service Awards: RMB, LoA, SSDR, SASM (*), NDSM, KLM

 Days of Unauthorized Absence: 31

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – Pattern of misconduct (administrative discharge board required but waived), authority: MARCORSEPMAN Par. 6210.3.

 Chronological Listing of Significant Service Events :

881220:  Counseled for deficiencies in performance and conduct. [Lack of responsibility, initiative, and attention to duty as evidenced by his failure to return to Communications School at the required time.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
890605:  NJP for violation of UCMJ, Article 86: At COMMCo, HQSVCBn, 2DFSSG, fail to go at the time prescribed to the rifle range at 0430 on 23 May 1989.
 Awarded: forfeiture of $200.00 per month for 1 months, restriction to the limits of place of mess, billet, duty , and worship and most direct route to and from without suspension from duty for 14 days. Not appealed.

 890727:  NJP for violation of UCMJ, Articles 107 and 86:
Violation of UCMJ, Article 107: At COMMCo, HQSVCBn, on 890623, make a false official statement to MSgt B_ and SSgt_ that he had lost his I.D. Card.
Violation of UCMJ, Article 86: At COMMCo, HQSVCBn, fail to go at the prescribed time for rifle range on 890619.
Awarded: restriction to the limits of place of mess, billet, duty and worship and most direct route to and from without suspension from duty for 60 days and extra duty for 30 days to run concurrently. No indication of appeal in the record.

 890928:  NJP for violation of UCMJ, Article 86:
Violation of UCMJ, Article 86: UA(AWOL) 0700, 890921 – 1245, 890921, from CSSD-25.
Awarded: forfeiture of $200.00 pay per month for a period of 1 month, Correctional Custody for 30 days. Forfeiture of $200.00 pay per month for a period of 1 month, is herby suspended for a period of 6 months, at which time, unless sooner vacated the suspension will be remitted without further action. Not appealed.

891004:  Applicant undergoes psychiatric evaluation at Camp Lejeune Naval Hospital after presenting himself to the ER with complaints of suicidal intent.
         Impression: LCPL G_ has a serious personality disorder with dependent, passive-aggressive, and inadequate features. He is evidently incapable of tolerating even routine demands of military life-style. Considered a moderate to high risk for contingent, non-lethal suicidal behavior so long as he remains in the USMC.
         Recommendation: The patient is considered unsuitable for CCU and further military service. The patient is not mentally ill and is responsible for his behavior. Although technically fit for full duty, he does have a character and behavior disorder which is of sufficient severity to preclude further satisfactory military service. He does not require and will not benefit from psychiatric hospitalization. Strongly recommend that he be processed by his local command for an administrative discharge in accordance with MARCORSEPMAN, par 6203.3, by reason of unsuitability without recourse to further psychiatric evaluations, hospitalization or medical board. In sum, an expeditious separation from the military is strongly recommended.
891005:  Counseled for deficiencies in performance and conduct. [Continuous involvement with military authorities, unauthorized absences, failure to obey orders, loss of 782 gear, etc.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

891107:  Suspension of NJP imposed and suspended on 890928 for a period of 6 months is hereby vacated and the punishment is ordered executed this date.

891205:  Summary Court-Martial.
         Charge I, Spec 1: violation of the UCMJ, Article 86: In that Lance Corporal L_ S. G_ [Applicant], Communications Company, HQSVCBn, 2dFSSG, FMFLant, CamLej NC, did, on or about 891007, without authority fail to go at time prescribed to his appointed place of duty, to wit: 0700, Restriction Muster.
         Charge I, Spec 2: violation of the UCMJ, Article 86: In that Lance Corporal L_ S. G_, Communications Company, HQSVCBn, 2dFSSG, FMFLant, CamLej NC, did, on or about 891017, without authority fail to go at time prescribed to his appointed place of duty, to wit: 0700, Restriction Muster.
         Charge I, Spec 3: violation of the UCMJ, Article 86: In that Lance Corporal L_S.G_, Communications company, HQSVCBn 2dFSSG, FMFLant, CamLej NC, did, on or about 891018, without authority fail to go at time prescribed to his appointed place of duty, to wit: 0700, Restriction Muster.
         Charge II, Spec 1: violation of the UCMJ, Article 134: In that LCpl L_ S. G_, Communications Company, HQSVBn 2dFSSG, FMFLant, CamLej NC, having been restricted to the limits of COMMCo, HQSVCBn 2dFSSG, FMFLant, CamLej NC, by a person authorized to do so, did, at COMMCo, HQSVCBn, 2dFSSG, FMFLant, CamLej NC, on or about 891013, break said restriction.
         Findings: to Charge I and the first specification thereunder, guilty. To Charge I and the second specification thereunder, guilty. To Charge I and the third specification thereunder, guilty. To Charge II and the first specification thereunder, guilty.
         Sentence: Confinement for a period of 29 days, forfeiture of $466.00 pay per month for a period of 1 month, reduction to pay grade E-1.
         CA action 891214: Sentence approved and ordered executed.

891206:  Applicant to confinement.

891229:  Applicant from confinement.

 900323:  NJP for violation of UCMJ, Articles 86 and 92:
 Violation of Article 86, UCMJ: UA (AWOL) 0700, 20 Mar 1990 – 0715, 20 Mar 1990, from CommCo office.
Violation of Article 92, UCMJ: At Bldg FC 255, MCB, CLNC, 0645, 21 Mar 1990, derelict in performance of duties by willfully failing to report to Bldg FC 255, as it was his duty to do.
Awarded: Restriction to the limits of place of mess, billet, duty and worship, and most direct route to and from without suspension from duty for 60 days. Forfeiture of $360.00 pay per month for 2 months. Forfeiture of $360.00 pay per month for 2 months is suspended for 6 months, at which time, unless sooner vacated, will be remitted without further action. Not appealed.

920106:  Applicant to UA (AWOL) at 0701, 920106.

920108:  Applicant from UA (AWOL), at 0030, 920108.

920214:  Applicant to UA (AWOL), at 1201, 920214.

920219:  Applicant from UA (AWOL), at 920219.

920220:  Applicant to UA (AWOL) at 1521, 920220.

920315:  Applicant from UA (AWOL) at 1500, 920315.

920409:  DD Form 214: Applicant discharged with a under other than honorable conditions character of service, misconduct – pattern of misconduct, authority: MARCORSEPMAN Par. 6210.3.

         Applicant’s discharge package missing from service record

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 920409 under other than honorable conditions by reason of misconduct due to a pattern of misconduct (A). After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (B and C). The presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package (D).

In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable. Specifically, the Applicant alleged that he was “aware of the appeal but not the process” for his nonjudicial punishment proceedings. The Applicant was given the opportunity to consult with a lawyer prior to his nonjudicial punishment proceedings but chose not to exercise that right. In addition, the record contains no evidence of any wrongdoing by the government in the administrative 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.

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. The Applicant’s service was marred by 3 nonjudicial punishment proceedings for violations of Articles 86 and 107 of the UCMJ. The Applicant was also found guilty at a summary court-martial of violations of UCMJ Articles 86 (3 specs) and 134. 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 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 any 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 P1900.16D), effective 27 Jun 89 until 17 Aug 95.

B. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety .

 C. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity .
D. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.


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 “ http://Boards.law.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:

                  Secretary of the Navy Council of Review Boards
                   Attn: Naval Discharge Review Board
                   720 Kennon Street SE Rm 309
                  Washington Navy Yard DC 20374-5023

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