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NAVY | DRB | 2004 Marine | MD04-01142
Original file (MD04-01142.rtf) Auto-classification: Denied


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


ex-Pvt, USMC
Docket No. MD04-01142

Applicant’s Request
The application for discharge review was received on 20040708. 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, authority: MARCORSEPMAN Par. 6210.3.





PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated
Applicant’s issues, as stated on the application:

 1. “Based on time and grade, I feel that the office hour offenses that were committed during time in service were not serious enough to the point where discharge should have been recommended. Being brought up on charges that had good explanation shows that the focus in the armed forces are to pinpoint a person mistakes and ever generalize the whole issue.
(Last marks on rifle range) expert.
(Last marks on PFT scorge) excellent.
(work) above average, got the job done.
All of the offense committed were not work related. Some were the cause of over sleeping isn’t a pattern of misconduct,
Human error. (Do I think I deserve an upgrade? (Yes!).”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
          Inactive: USMCR(J)                920826 - 921109  COG
Period of Service Under Review :
Date of Enlistment: 921110               Date of Discharge: 951205

 Length of Service (years, months, days):

         Active: 03 00 26
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4
Education Level: 12                        AFQT: 35

 Highest Rank: LCpl                         MOS: 3381
Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.1 (10)                      Conduct: 3.7 (10)

 Military Decorations: None
Unit/Campaign/Service Awards: NDSM, SSDR, MM (2), RM

 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 :

940829:  NJP for violation of UCMJ, Article 86:
 Specification: Unauthorized absence from 0700, 940815 to 0355, 940817 (1 day).
 Violation of UCMJ, Article 91:
Specification: Willfully disobey an order from GySgt C_ to stay in his room on 0920, 940826.
 Awarded forfeiture of $226.00 per month for 1 month, restriction and extra duties for 14 days. Forfeiture suspended for 6 months. Not appealed.
950207:  NJP for violation of UCMJ, Article 86:
 Specification: Fail to go at the time prescribed to the rifle range at 0500, 950127.
 Awarded forfeiture of $410.00 per month for 1 month, restriction and extra duties for 30 days, reduction to E-2. Forfeiture suspended for 6 months. Not appealed.
950223:  Vacate suspended forfeiture awarded at CO’s NJP dated 940829.

 950422:  Counseled for deficiencies in performance and conduct. [Failure to comply with the UCMJ. Failure to follow and obey order.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
950428:  Counseled for deficiencies in performance and conduct. [Failure to comply with the UCMJ. Failure to obey orders. Speeding.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
950613:  Counseled for deficiencies in performance and conduct. [Failure to comply with the UCMJ. Suspension/revocation of driving privileges for accumulated points. Driving privileges revoked for 12 months.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
950918:  Counseled for deficiencies in performance and conduct. [Failure to comply with the UCMJ. Not being at appointed place of duty on time.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
950922:  NJP for violation of UCMJ, Article 92 (2 specs):
 Specifications: Viol CAMPEN BO P5000.2H on 950913 and 950915 by operating a motor vehicle while his Base driving privileges were revoked.
 Awarded restriction and extra duties for 45 days, reduction to E-1. Not appealed.
951017:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.
951017:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.
951117:  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 three 6105 counseling entries and your three nonjudicial punishments.

951109:  SJA review determined the case sufficient in law and fact.
951115:  GCMCA [Commanding General, 1MARDIV] 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 19951205 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 none of his offenses were work related, some were the result of oversleeping and that he thinks he deserves an upgrade. When the service of a member of the 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 three nonjudicial punishment proceedings for five violations of Articles 86, 91 and 92 of the UCMJ. On 19950223, the punishment suspended at the Applicant’s NJP of 19940829 was vacated indicating further misconduct. Additionally, the Applicant’s conduct marks over the course of his enlistment averaged 3.7, below standard for an honorable characterization of service. 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 P1900.16E), effective 18 Aug 95 until 30 Jan 97.

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 and order/regulation.
C. 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.

D. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety .
E. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity .


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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