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USMC | DRB | 2005_Marine | MD0500149
Original file (MD0500149.rtf) Auto-classification: Denied


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

ex-PFC, USMC
Docket No. MD05-00149

Applicant’s Request
The application for discharge review was received on 20041022. 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 20050118. 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. “At the time of my service I was having lots of problems trying to deal with a divorce and was having a hard time adjusting to military life. Due to all the family problems that I was having I requested in front of the commanding officer of MCRD San Diego to be discharged. My unit did not want me to get out due to the fact that I was an excellent Marine before I started going through my hardship. I have learned my lesson and have not gotten in any trouble since my discharge. Please, Naval Council of Personnel board reconsider my discharge for honorable discharge.
Thank you

[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)                960828 - 961117  COG

 Period of Service Under Review :
Date of Enlistment: 961118               Date of Discharge: 981210

 Length of Service (years, months, days):

         Active: 02 00 23
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 42

 Highest Rank: LCpl                         MOS: 5811

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.4 (3)                       Conduct: 4.4 (3)

 Military Decorations: None

 Unit/Campaign/Service Awards: MUC

 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 :

980410:  Counseled for deficiencies in performance and conduct. [Violations of Articles 86, 92 and 107.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

980416:  Counseled for deficiencies in performance and conduct. [Rehabilitation process prescribed by the Family Advocacy Center.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

 980914:  NJP for violation of UCMJ, Article 92 (2 specs):
 Specification 1: Violate a lawful order by wrongly consuming alcohol under 21.
Specification 2: Violate a lawful order by consuming alcohol within a 12 hour period from assumption of duty.
Article 128: On 980728 assault his spouse.
Awarded forfeiture of $519.00 per month for 2 months, restriction and extra duties for 45 days, RIR to E-2. 1 mo. forf. susp. 6 mos. Not appealed.
980924:  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 repeated counseling regarding failure to follow instructions and adhering to generally accepted standards of behavior and discipline, nonjudicial punishment for domestic assault and two 6104 entries. Additionally you have failed to complete the treatment plan that was to be a part of your rehabilitative program.
980924:  Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

981005:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct
981026:  Applicant waived his right to an Administrative Discharge Board.

Undated:         SJA review determined the case sufficient in law and fact. [Date illegible.]

981118:  GCMCA [CG, MCRD SDCA] 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 19981210 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 his disciplinary problems were the result of stress caused by his divorce and adjusting to military life. The NDRB recognizes that serving in the Marine Corps is challenging. Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country. It must be noted that most members serve honorably and therefore earn their honorable discharges. In fairness to those members, commanders and separation authorities are tasked to ensure that undeserving Marines receive no higher characterization than is due. The NDRB found that the Applicant's service was equitably characterized. Relief denied.

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 nonjudicial punishment proceedings for violations of Articles 92 and 128 of the UCMJ in addition to multiple counselings for 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. 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 128, Assault.
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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