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USMC | DRB | 2005_Marine | MD0500176
Original file (MD0500176.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD05-00176

Applicant’s Request
The application for discharge review was received on 20041108. 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 20050201. 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. “This veteran had almost completed his obligation of four years, outstanding evaluation completed special course, had never been in trouble, he was immature at the time. By giving him this type of discharge, he cannot receive any type of benefit to help him further his education, or try and learn a skill to provide for his family. This veteran had almost completed his tour of duty four year, had outstanding evaluation, completed MCI, had never been in trouble before and immature.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
None were submitted

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                960620 - 970617  COG

 Period of Service Under Review :
Date of Enlistment: 970618               Date of Discharge: 010119

 Length of Service (years, months, days):

         Active: 03 07 02         Does not exclude lost time
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 47

 Highest Rank: Cpl                          MOS: 0313

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: NMF*                          Conduct: NMF

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR, NATO, KCM, HSM, NUC, MUC with Bronze Star, CoC (2), CAR

 Days of Unauthorized Absence: 66

*No marks found in service record

 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 :

990823:  NJP for violation of UCMJ, Article 92:
 Specification: Violate COMSIXTHFLTINST 5000.1M by failing to maintain contact with his liberty partners.
Violation of Article 134:
Specification: Drunk and disorderly on 0200, 990818.
Awarded restriction and extra duties for 30 days. Not appealed.
000120:  Counseled for deficiencies in performance and conduct. [(1) Excessive drinking, (2) Fraternizing with LCpl while on liberty. (3) Late for work. (4) Lack of discipline and irresponsibility.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
000208:  NJP for violation of UCMJ, Article 86:
 Specification: Failed to go at the time prescribed to appointed place of duty on 0530, 000203.
Awarded forfeiture of $172.00 per month for 1 month, restriction and extra duties for 7 days. Not appealed.
000522:  NJP for violation of UCMJ, Article 92:
 Specification: Violated MCO 1020.34F by wearing an ear ring in his left ear while entering the Main Gate at Camp Lejeune, NC.
Awarded forfeiture of $617.00 per month for 2 months, restriction and extra duties for 45 days, reduction to E-3. Not appealed.
000606:  Counseled for deficiencies in performance and conduct. [Conviction of Article 92 of the UCMJ. Specifically you were charged with wearing an ear ring in your left ear. Failure to be at your appointed place of duty. Specifically, unauthorized absence from Company formation held at 0600, 000601 Bldg 503. Disobedience of an order from you platoon NCOs to be at the 0600, 000601 formation at Bldg 503. Unauthorized absence from your appointed place of duty (S-4 Shop) from 0645-1000, 000601] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
000906:  Special Court Martial:
         Charge I: violation of the UCMJ, Article 86 (4 specs):
         Specification 1: Unauthorized absence 000612 - 000720.
         Specification 2: Fail to go at time prescribed to appointed place of duty on 2200, 000803, to wit: barracks room inspection.
         Specification 3: Fail to go at time prescribed to appointed place of duty on 0530, 000804, to wit: morning police.
         Specification 4: Fail to go at time prescribed to appointed place of duty on 0700, 000611, to wit: restriction muster.
         Charge II: violation of the UCMJ, Article 89:
         Specification: Disrespect to a commissioned officer on 000611.
         Charge III: violation of the UCMJ, Article 91:
         Specification: Disrespect to a noncommissioned officer on 000611.
         Findings: to Charge I, II, and III and specifications thereunder, guilty.
         Sentence: Confinement for 140 days, forfeiture of $500 per month for 4 months, reduction to E-1. Credited with 30 days of confinement.
         CA 001212: Sentence approved and ordered executed.

001121:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.
001121:  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.

001128:  Memorandum from Commanding Officer to Commanding General.

001201:  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 nonjudicial punishments of 990823, 000208 and 000522, and your special court-martial dated 000906.

001222:  Applicant to unauthorized absence 0700, 001222.

010106:  SJA review determined the case sufficient in law and fact.

010116:  GCMCA [Commanding General, 2d Marine Division, II Marine Expeditionary Force] 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 20010119 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. The Applicant’s service was marred by award of three nonjudicial punishments and one special court-martial for unauthorized absences, disrespect to officers and NCOs, disobedience of lawful orders, and being drunk and disorderly. 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. The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.

 The Veterans Administration determines eligibility for post-service benefits, not the NDRB. There is no requirement or law that grants recharacterization solely on the issue of obtaining veterans’ benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.
The Applicant’s discharge characterization accurately reflects his service to his country. The discharge was proper and equitable. 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 for more than 30 days; Article 89, disrespect to a commissioned officer; Article 91, disrespect to a NCO; Article 92, disobey a lawful order.
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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