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NAVY | DRB | 2004 Marine | MD04-01236
Original file (MD04-01236.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD04-01236

Applicant’s Request
The application for discharge review was received on 20040728. 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 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. “I served honorably for over 3 yr. Due to an emergency, I missed a uniform inspection. From there it seemed that I could do nothing right.”

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)                980831 - 990404  COG

 Period of Service Under Review :
Date of Enlistment: 990405               Date of Discharge: 040323

 Length of Service (years, months, days):

         Active: 04 11 19 (Does not exclude lost time)
         Inactive: None

 Age at Entry: 18                          Years Contracted: 5

Education Level: 12                        AFQT: 49

 Highest Rank: LCpl                         MOS: 0411

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.8 (11)                      Conduct: 3.7 (11)

 Military Decorations: None

 Unit/Campaign/Service Awards: CAR, GCM, SSDR (w/1*), NDSM, PUC

 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. 6210.3.

 Chronological Listing of Significant Service Events :

990930:  Counseled for deficiencies in performance and conduct. [Academic drop from the AE course.] Necessary corrective actions explained, sources of assistance provided.

991112:  Counseled for deficiencies in performance and conduct. [Violations of Articles 86 and 92 of the UCMJ.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
020315:  NJP for violation of UCMJ, Article 86: UA from company PT on 020222; violation of UCMJ, Article 92: Derelict in the performance of duties by not supervising the cleaning of platoon common areas.
 Awarded forfeiture of $323.00, restriction and extra duties for 14 days. Not appealed.
020424:  Summary Court-Martial.
 Charge I: Violation of UCMJ, Article 86: UA from place of duty on 020320.
                   Charge II: Violation of UCMJ, Article 134: Break restriction on 020323.
                  Finding: Guilty to all charges.
 Sentence: Forfeiture of 2/3’s pay for one month, 25 days confinement, and reduction to Pvt.
CA action: 020424. Approved and ordered executed.
020904:  NJP for violation of UCMJ, Article 86: UA from 0531-0630, 020723; violation of UCMJ, Article 91: Disobeyed order from Sgt E_ to report to PT on 020723; violation of UCMJ, Article 92: Disobey a general order to shave his face on 020722.
 Awarded forfeiture of $257.00, restriction and extra duties for 14 days. Not appealed.
030916:  Counseled for deficiencies in performance and conduct. [UA from morning formation at 0400, 030911.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
031015:  NJP for violation of UCMJ, Article 86: UA from formation on 030929.
 Awarded forfeiture of $645.00, reduction to Pvt, restriction and extra duties for 21 days. Not appealed.
031029:  Counseled for deficiencies in performance and conduct. [Poor judgment, UA.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
031117:  Counseled for deficiencies in performance and conduct. [Failure to obey rules and regulations.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
040217:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.
040217:  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.
040217:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

040224:  Summary Court-Martial.
 Charge I: Violation of UCMJ, Article 86: UA from place of duty on 040130.
                   Charge II: Violation of UCMJ, Article 91 (3 specs).
 Specification 1: Willfully disobeyed order from Sgt S_ to field day his house.
                   Specification 2: Willfully disobeyed order from Sgt S_ to empty his trash.
                  Specification 3: Treated Sgt S_ with contempt on 040129.
 Charge III: Violation of UCMJ, Article 109: Willfully damage his military housing.
                   Finding: Guilty to Charge I and II; not guilty to Charge III.
 Sentence: Forfeiture of $795.00, 15 days confinement and restriction.
CA action: 040224. Approved and ordered executed.
040318:  SJA review determined the case sufficient in law and fact.

040322:  GCMCA [CG, MCB, CPCA] 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 20040323 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. A characterization of service of under other than honorable conditions is warranted when the member's conduct constitutes a significant departure from that expected of a Marine. T he Applicant’s service was marred by award of nonjudicial punishment (NJP) on three occasions and two summary courts-martial for violation of UCMJ, Articles 86, 91, 92 and 134, and adverse counseling entries on other occasions. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for an under honorable (general) characterization of service. An upgrade is inappropriate. Relief denied.

The Applicant’s discharge characterization accurately reflects his service to his country. Normally, to permit relief, an inequity or impropriety must have existed during the period of enlistment in question. No such inequity or impropriety is evident during the Applicant’s enlistment. Additionally, 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 the service. Relief not warranted.

The Applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received at the NDRB within 15 years from the date of his 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 P1900.16F), effective 01 Sep 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 86, unauthorized absence; Article 91, disobey a NCO; Article 92, disobey a lawful order; and Article 134, break restriction.
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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