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NAVY | DRB | 2004 Marine | MD04-01352
Original file (MD04-01352.rtf) Auto-classification: Denied


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

ex-PFC, USMC
Docket No. MD04-01352

Applicant’s Request
The application for discharge review was received on 20040827. 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 – Minor disciplinary infractions (administrative discharge board required but waived), authority: MARCORSEPMAN Par. 6210.2.


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:
Copy of the Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                         890918 - 900107  COG

 Period of Service Under Review :
Date of Enlistment: 900108                        Date of Discharge: 920313

 Length of Service (years, months, days):

         Active: 02 02 00
         Inactive: None

 Age at Entry: 19                          Years Contracted: 5

 Education Level: 12                        AFQT: 78

 Highest Rank: LCpl                         MOS: 6017

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.8 (6)              Conduct: 3.5 (6)

 Military Decorations: None

 Unit/Campaign/Service Awards: REB (2), LOA, NDSM, SASM, KLM

 Days of Unauthorized Absence: 6

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

UNDER OTHER THAN HONORABLE CONDITIONS/ Misconduct – Minor disciplinary infractions (administrative discharge board required but waived), authority: MARCORSEPMAN Par. 6210.2.

 Chronological Listing of Significant Service Events :

900719:  Applicant to UA (AWOL) at 1700, 909719.

900726:  Applicant from UA (AWOL) at 1320, 909726.
900803:  Counseled for deficiencies in performance and conduct. [Specifically, unauthorized absence.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

900803:  NJP for violation of UCMJ, Article 86: UA 1700, 900719 to 1320, 909726, from MATSS-901, MATSG-90, NATTC, NAS MFS, MILL, TN.
 Awarded: Reduction to E-1 and 30 days extra duties. Reduction to E-1 suspended for 60 days, at which time, unless sooner vacated , will be remitted without further action. Not appealed.
900813:  22 days extra duty not served imposed at NJP on 900803, suspended this date for 30 days, at which time, unless sooner vacated, will be remitted without further action.

910430:  NJP for violation of UCMJ, Articles 92, 91 (3 Specs), 89:
         Violation of UCMJ Article 92: LCpl J_ (Applicant) had a K-Bar knife and a .177 Cal Pellet pistol in BEQ room 112.
         Violation of UCMJ Article 91, Spec 1: Disrespectful to SgtMaj M_ on 910414.
         Spec 2: Disrespectful to SgtMaj M_ on 910415.
         Spec 3: Violated a lawful order from SgtMaj M_ .
         Violation of UCMJ Article 89: Disrespectful to Capt S_.
 Awarded: Reduction to E-2, forfeiture of $442.00 for 2 months, and 30 days correctional custody. Effective date of reduction is 910429.
Appeal submitted 910430.
Appeal denied 910708.
910502:  Counseled for deficiencies in performance and conduct. [Specifically, your (Applicant) disobedience of lawful orders, disrespect to SNCO and an Officer, and your belligerent attitude in general towards authority and military discipline.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

911119:  Counseled for deficiencies in performance and conduct. [Specifically, failed a scheduled semi-annual PFT.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

911210:  NJP for violation of UCMJ Article 86: UA from 1400, 9111124 to 1700, 911124.
         Awarded: Reduction to E-1, forfeiture of $377.00 for 2 months (Total forfeiture $754.00), and 45 days extra duties. Reduction to E-1 and forfeiture of $377.00 per month for 2 months suspended for 3 months, at which time, unless sooner vacated, will be remitted without further action (Total forfeiture suspended $754.00). Not appealed.


911218:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions as evidenced by 2 occasions of unauthorized absence, 3 counts of disrespect, 1 count, violation of a written order and 1 count violation of a lawful order.
.
911218:  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.

911219:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions. The factual basis for this recommendation was 2 occasions of unauthorized absence, 3 counts of disrespect, 1 count violation of a written order and 1 count violation of a lawful order. Commanding Officer’s comments [verbatim]: “His (Applicant) unsatisfactory performance during 23 months of active service clearly indicated his unsuitability for future military service”.

920223:  SJA review determined the case sufficient in law and fact.

920224:  GCMCA , Commanding General, 1sr Marine Expeditionary Brigade, directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 920313 under other than honorable conditions for misconduct due to minor disciplinary infractions (A). The Board presumed regularity in the conduct of governmental affairs (B). 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 (C and D).

No issues were submitted by the Applicant.

 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 (2 specs), 89, 91 (3 specs), and 92 of the UCMJ. In addition, the Applicant was counseled 3 times for deficiencies in performance and conduct. 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 II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

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

 D. 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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