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NAVY | DRB | 2004 Marine | MD04-01264
Original file (MD04-01264.rtf) Auto-classification: Denied


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

BECK Jr., James F., 136 68 9802, ex-PFC, USMC
Docket No. MD04-01264

Applicant’s Request
The application for discharge review was received on 20040802. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. 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

 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)                931029 - 940717  COG

 Period of Service Under Review :
Date of Enlistment: 940718               Date of Discharge: 980205

 Length of Service (years, months, days):

         Active: 03 06 18
         Inactive: None

 Age at Entry: 17 (Parental consent)     Years Contracted: 4

Education Level: 12                        AFQT: 54

 Highest Rank: LCpl                         MOS: 3531

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.7 (8)                       Conduct: 3.7 (8)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, LA

 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 :

951030:  Counseled for deficiencies in performance and conduct. [Personal financial discipline and poor leadership, specifically your failure to pay your debts as scheduled and to be at your appointed place of duty on time.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
960329:  Counseled for deficiencies in performance and conduct. [Poor leadership and failure to follow instructions.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
960619:  NJP for violation of UCMJ, Article 86 (2 specs): UA 0500 – 0600, 960521 and 0530 – 0550, 960604 from the motor pool.
 Awarded forfeiture of $508.00 (suspended for 6 months), restriction and extra duties for 30 days. Not appealed.
960701:  Counseled for deficiencies in performance and conduct. [Failure to be on time and to be at your appointed place of duty which resulted in NJP.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
961008:  Vacate suspended punishment from NJP on 960619.

961115:  NJP for violation of UCMJ, Article 86: UA between 0531 - 0605, 960902.
 Awarded forfeiture of $537.00 (suspended for 6 months), restriction and extra duties for 30 days. Not appealed.
961127:  Counseled for deficiencies in performance and conduct. [Failure to be at your appointed place of duty which resulted in NJP.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
970507:  Counseled for deficiencies in performance and conduct. [Unsatisfactory performance of duties, being late for work, disregard for safety, and your general lack of interest in your unit’s mission.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
971007:  NJP for violation of UCMJ, Article 86: UA from section PT on 970808.
 Awarded forfeiture of $505.00 (suspended for 6 months), restriction and extra duties for 40 days, reduction to PFC. Not appealed.

 971118:  Counseled for deficiencies in performance and conduct. [UA resulted in BN NJP. Recommended for administrative separation for a pattern of misconduct.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
971223:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by three NJPs and six page 11s.
971223:  Applicant advised of rights and having consulted 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.
980115:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

980126:  SJA review determined the case sufficient in law and fact.

980130:  GCMCA [CG, MCB, Quantico, VA] 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 19980205 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 consideration by the Board. 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 for violation of UCMJ, Article 86, vacation of suspended punishment from one NJP 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 honorable or 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 P1900.16E), 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.
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

BOARD MEMBERS RECORD OF VOTE
                                                     ________________________________
NAME                                        CHARACTER        BASIS/REASON

T.B. GALVIN, COL, USMC                     NO CHANGE                 NO CHANGE
Presiding Officer

A. E. KOLKMEYER, LTCOL, USMC     NO CHANGE                 NO CHANGE
Member
 
J. ZWILLER, CAPT, USMC                     NO CHANGE                 NO CHANGE
Member
  
J. KOSKY, LT, JAGC, USNR                  NO CHANGE                 NO CHANGE
Member

B. DUNCAN, MAJ, USMC                       NO CHANGE                 NO CHANGE
Recorder


Recorder’s Signature:_____________________________________________


Presiding Officer’s Signature:_______________________________________



A. The Marine Corps Separation and Retirement Manual, (MCO P1900.16E, effective 31 Jan 97 until 31 Aug 01) Paragraph 6210, MISCONDUCT , states:

1. Whenever a Marine is involved in misconduct, as described in the following paragraphs, commanders shall process the Marine for separation unless rehabilitation and retention are warranted under the guidelines in paragraphs 6105. Characterization of service normally shall be under other than honorable conditions, but characterization as under honorable conditions (general) may be warranted in some circumstances. For Marines who have completed entry level status, characterization of service as honorable is not authorized unless the Marine's record is otherwise so meritorious that any other characterization clearly would be inappropriate and the separation is approved by the GCMCA. When characterization of service under other than honorable conditions is not warranted for a Marine in entry level status, the separation shall be uncharacterized. Separation processing for a series of minor disciplinary infractions or a pattern of misconduct may not be initiated until the member has been counseled in accordance with the guidelines for counseling set out in paragraph 6105. Counseling per paragraph 6105 and rehabilitation are not required if the basis of separation is commission of a serious offense, a civilian conviction or similar juvenile adjudication, sexual harassment, or drug abuse. Process per provisions of paragraph 6303 or 6304 as appropriate. Actions on related misconduct separations:

a. Misconduct involving homosexual conduct shall be processed under paragraph 6207.

b. Misconduct involving fraudulent entry shall be processed under paragraph 6204.3.

c. Offenses involving drug abuse shall be processed for separation by reason of the appropriate drug abuse offense in paragraph 6210.5, as well as, other applicable reason in this Manual.
2. Minor Disciplinary Infractions. A Marine may be separated when there is in her/her service record book, a documented series of at least three minor disciplinary infractions, during the current enlistment, of a nature which have been or would have been appropriately disciplined under Article 15, UCMJ, nonjudicial punishment. If separation of a member in entry level status is warranted solely by reason of minor disciplinary infractions, the processing should be under Entry Level Performance and Conduct. Separation processing may not be initiated until the Marine has been counseled per paragraph 6105. The notification procedure contained in paragraph 6303 may be used if characterization of service under other than honorable conditions is not warranted.

3. Pattern of Misconduct. A Marine may be separated when there is a pattern of more serious misconduct than in paragraph 6210.2 which include[s] two or more discreditable involvements with civil and/or military authorities or two or more instances of conduct prejudicial to good order and discipline within one enlistment. Such a pattern may include both minor and more serious infractions. An established pattern of dishonorable failure to pay just debts and/or to contribute adequate support to dependents or failure to comply with orders, decrees, or judgements of a civil court concerning support of dependents may be processed under this paragraph. Separation processing may not be initiated until the Marine has been counseled per paragraph 6105. The notification procedure contained in paragraph 6303 may be used if characterization of service under other than honorable conditions is not warranted.

4. Sexual Perversion. Sexual perversion (see paragraph 1002.53) is not a specific basis for discharge. Marines involved in acts of sexual perversion shall be processed under paragraph 6210.6 or 6210.7, as appropriate.

5. Drug Abuse

a. Commanders shall process Marines for administrative separation for illegal, wrongful, or improper use, possession, sale, transfer, distribution, or introduction on a military installation of any controlled substance, marijuana, steroids, or other dangerous or illicit drug or the possession, sale, or transfer of drug paraphernalia as defined in SECNAVINST 5300.28. Evidence obtained from an involuntary urinalysis administered pursuant to an inspection under Military Rules of Evidence 313, MCM 1984, or from a search and seizure under Military Rules of Evidence 311317, MCM, 1984, or incident to an exam conducted for a valid medical reason may be used to characterize a member's discharge as under other than honorable conditions. The procedures contained in paragraph 6304 shall be used when separating a Marine under these provisions, unless a characterization of service more favorable than other than honorable is required.

b. All Marines, regardless of pay grade, confirmed as having used or possessed illegal drugs will be processed for administrative separation for misconduct, by reason of drug abuse, per paragraph 6210.5 on the first offense. Marines may also be disciplined if such action is deemed appropriate.

c. Self-referral for drug use constitutes confirmation of illegal drug abuse and requires a Marine to be processed for administrative separation. The Voluntary Drug Exemption Program is no longer applicable. However, a Marine's voluntary submission to a DoD treatment and rehabilitation program, and evidence voluntarily disclosed by the Marine as part of the course of treatment in such a program may not be used against the Marine on the issue of characterization of service. This limitation does not apply to:

(1) The introduction of evidence for the purpose of impeachment or rebuttal in any proceeding in which evidence of drug abuse has been first introduced by the Marine; or

(2) The taking of action based on independently derived evidence, including evidence of continued drug abuse after initial entry into a treatment and rehabilitation program.

d. Marines separated for drug abuse will be screened for drug dependency at a Substance Abuse Counseling Center (SACC) and, if diagnosed as drug or alcohol dependent, will be referred to the Veterans Administration at the time of separation. . . .

6.       Commission of a Serious Offense .

a. A Marine may be processed for separation for the commission of a serious military or civilian offense under the following circumstances:

(1) The specific circumstances of the offense warrant separation.

(2) A punitive discharge would be authorized for the same or a closely related offense under the UCMJ.

b. A military or civilian conviction is not required for discharge under this provision.

c. Follow the procedures in paragraph 6304 when separating a Marine under this provision.

7.       Civilian Conviction .

a. Commanders may process Marines who are convicted by civilian authorities (foreign or domestic) or action taken which is tantamount to a finding of guilty, including similar adjudications in juvenile proceedings, when:

(1) The specific circumstances of the offense warrant separation, and

(2) A punitive discharge would be authorized for the same or a closely related offense under the UCMJ; or

(3) The sentence by civilian authorities includes confinement for 6 months or more without regard to suspension or probation.

b. Separation processing may be initiated whether or not a Marine has filed an appeal of a civilian conviction or has stated an intention to do so. However, execution of an approved separation should be withheld pending outcome of the appeal or until the time for appeal has passed, unless the Marine has requested separation or the member's separation has been requested by the Commandant of the Marine Corps. Such request must be approved by the Secretary of the Navy who may direct that the member be separated prior to final action on the appeal.

c. For special provisions regarding characterization of discharge based upon civilian conviction in the case of a reservist, see paragraph 1004.4d.
d. Follow the procedures in paragraph 6304 when separating a Marine under this provision.

8. Sexual Harassment

a. Processing for separation is mandatory following the first substantiated incident of sexual harassment involving any of the following circumstances:

(1)      Threats or attempts to influence another’s career or job for sexual favors:
(2)      Rewards in exchange for sexual favors; or,
(3) Physical contact of a sexual nature which, if charges as a violation of the UCMJ, could result in a punitive discharge.

b. An incident is considered substantiated when there has been a court-martial conviction, nonjudicial punishment, or the commander determines, based on a preponderance of the evidence, that sexual harassment has occurred.

c. Refer to the procedures in paragraph 6303 or 6304, as applicable. The basis for separation shall be under paragraph 6210.2 (Minor Disciplinary Infractions); 6210.3 (Patter of Misconduct); or 6210.6 (Commission of a Serious Offense). Counseling per paragraph 6105 is not required for processing a Marine for separation under this paragraph, unless the Marine is processed under paragraph 6210.2 or 6210.3.

9. Participation in supremacist r extremist organizations or activities.

a. Processing for separation is mandatory following the first substantiated incident or serious misconduct resulting from the member's participation in extremist or supremacist activities which, in the independent judgment of an administrative separation board convening authority, is more likely than not to undermine unit cohesion or be detrimental to the good order, discipline, or mission accomplishment of the command. Such misconduct must relate to:

(1) Illegal discrimination based on race, creed, color, sex, religion, or national origin; or

(2) Advocating the use of force of violence against any Federal, State, or Local Government, or ay unit or agency thereof, in contravention of Federal, State, or Local Laws.

b. An incident is considered is considered substantiated when there has been a court martial conviction, nonjudicial punishment, or an administrative separation board convening authority determines, based on a preponderance of the evidence, that the member has engaged in supremacist or extremist conduct.

c. The based for separation shall be under paragraphs 6210.2 (Minor Disciplinary Infractions); 6210.3 (Pattern of Misconduct); 6210.6 (Commission of a Serious Offense); 6214 (Separation in the be Best Interest of the Service). Note, however, that paragraphs 6210.2 and 6210.3 may not be used unless the Marine has been previously counseled concerning misconduct per paragraph 6106.D.

d. The least favorable characterization is under other than honorable condition, if an Administrative Board Procedure (Paragraph 6304) is used. Characterization is Honorable, General (Under Honorable Conditions), or Uncharacterized (Entry Level Separation), if the Notification Procedure (Paragraph 6302) is used. Refer to Paragraphs 6210.2, 6210.3, 6210.6 and 6214 to determine the applicability of paragraphs 6303 and 6304.

B. The Manual for Courts-Martial authorizes the award of a punitive discharge upon conviction by a special or general court-martial of violation of the UCMJ, Article [e.g. Article 86, for unauthorized absence for more than 30 days].
[OPTIONAL ADD ON]

 X. Paragraph 1004.3c of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E, effective 950818), Types of characterization, states, with regard to an under other than honorable conditions characterization:

1. This characterization may be issued when the reason for separation is based upon behavior or omission that constitutes a significant departure from the conduct expected of a Marine. (Examples of factors that may be considered include, but are not limited to, the use of force or violence to produce serious bodily injury or death, abuse of special positions of trust, disregard of customary superior-subordinate relationships, acts or omissions that seriously endanger the health and safety of others, and drug abuse.)

2. This characterization is authorized only if the member has been afforded the opportunity to request an administrative board, except in cases of separation in lieu of trial by courts-martial. See paragraphs 4104 and 6419.

3. When an enlisted Marine serving in paygrade E-4 or above is administratively separated with an other than honorable characterization of service, the Marine shall be administratively reduced to paygrade E-3, such reduction to become effective upon separation.


X. Paragraph 1004.4e of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E, effective 950818), Limitations on Characterization, Drug Abuse, states that confirmed illegal drug abuse requires mandatory administrative separation processing. If processing is based solely upon evidence that may not be considered in determining characterization of service, the separation authority may direct retention, or approve an honorable or general (under honorable conditions) characterization of service as warranted by the respondent's service record. In all other administrative separation proceedings based on drug abuse, the GCMCA may act as the separation authority and take final action in accordance with paragraph 6309 (except in cases that must be forwarded to the SECNAV or CMC under subparagraph 10004.4c or paragraph 6307.
X. Paragraph 1004.4f of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E, effective 950818), states that the results of a mandatory urinalysis may be considered on the issue of characterization when the evidence was gathered during an inspection under Military Rules of evidence 313, MCM, or from a search and seizure under Military Rules of Evidence 311-317, MCM, or incident to an examination conducted for valid medical purpose under Military Rules of Evidence 312 (F), MCM.
X. Table 1-1, Characterization of Service, Rule 8, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E, effective 950818), states that if a Marine is being separated under a provision of chapter 6, characterization of service is as directed by the separation authority.

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