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USMC | DRB | 2005_Marine | MD0500234
Original file (MD0500234.rtf) Auto-classification: Denied


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


ex-Pvt, USMC
Docket No. MD05-00234

Applicant’s Request
The application for discharge review was received on 20041122. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a personal appearance hearing before the Board in the Washington National Capital Region . The Applicant did not list any representative on the DD Form 293. Subsequent to the application, the Applicant obtained representation by the American Legion.

Decision

A personal appearance discharge review was conducted in Washington, D.C. Metropolitan area on 20050921. 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.

THIS IS THE CORRECT SHELL FOR MINOR DISCIPLINARY INFRACTIONS, EFFECTIVE 27 JUN 89 UNTIL 30 JUN 94. The finding for Misconduct is effective 27 Jun 89 until 17 Aug 95, however, the Commandant of the Marine Corps issued an official list of the new DoD SPD codes and narrative reasons for separation on 940701.

SPD CODE         NARRATIVE REASON FOR SEPARATION
SPD Codes are listed on page 1-55 of MCO P1900.16D, effective 27 Jun 89 until 1 Jul 94. The only change from MCO P1900.16C is: “administrative” vice “admin”)
GKN1     Misconduct - Minor disciplinary infractions (with administrative discharge board)
 HKN1     Misconduct - Minor disciplinary infractions (administrative discharge board required but waived)


Characterization of service is written “HONORABLE”, “UNDER HONORABLE CONDITIONS (GENERAL)” or “UNDER OTHER THAN HONORABLE CONDITIONS” (See page 1-33 of MCO P1900.16D, effective 27 Jun 89)

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Issues submitted by Applicant and counsel/representative (American Legion) at the time of hearing, superseding the issues provided by the Applicant on DD Form 293:
“1. (Equity Issue) This former member opines that her discharge is too harsh in light of her general overall performance and given the relatively minor nature of her misconduct of record.

2. (Propriety Issue) This former member further avers that she was brought up on unsubstantiated charges due to her command’s sexual prejudice.

3. (Equity Issue) This former member finally requests that the Board consider provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service.”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Letter from Pickens County Veterans Affairs Office, dated October 10, 2004 (2)
Letter from Applicant, dated September 15, 2004
Letter from Marine Corps League, dated October 11, 2004
Memorandum requesting enlistment, date October 12, 2004
Character reference, dated July 21, 2004
Character reference, dated July 29, 2004
Character reference, dated September 4, 2004
Employment information, dated September 27, 2004
Applicant’s statement, dated January 8, 1990
Letter from Lead Congressional Liaison Representative, Office of Legislative Affairs to United States Senator, dated November 10, 2004
Memorandum from SFC R_ L. T_, Myrtle Beach Recruiting Station, dated September 17, 2005
ARISS screen shot showing ASVAB scores, dated September 17, 2005

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                Unknown - 881101         ELS
                  USMCR(J)                 890323 - 890417  COG

 Period of Service Under Review :
Date of Enlistment: 890418               Date of Discharge: 900509

 Length of Service (years, months, days):

         Active: 01 00 17                  (Excludes lost time)
         Inactive: None

 Age at Entry: 19                          Years Contracted: 5

 Education Level: 12                        AFQT: 75

 Highest Rank: PFC                          MOS: 6000

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.3 (4)              Conduct: 3.1 (4)

 Military Decorations: None

 Unit/Campaign/Service Awards: RMB

 Days of Unauthorized Absence: None

 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 :

891010:  NJP for violation of UCMJ, Article 92:
 Specification: Disobey a lawful order to submit to psychological test on 890927.
Awarded forfeiture of $250.00 per month for 1 month, reduction to E-1. Forfeiture and reduction suspended for 6 months. Not appealed.
891018:  Counseled for deficiencies in performance and conduct. [Disobedience of lawful orders.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

891022:  Applicant hospitalized for observation and evaluation after taking an overdose of multiple medications. Discharge diagnosis: Personality disorder, not otherwise specified, with prominent passive-aggressive and immature features.

891103:  Applicant issued an Official Letter of Counseling by Commanding Officer, Marine Aviation Training Support Squadron for deficiencies in performance and conduct. [Diagnosed personality and adjustment disorder manifested by a longstanding history of disturbed interpersonal relations, social withdrawal, dysphoric mood and affective instability.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

891201:  Vacate suspended forfeiture and reduction awarded at CO’s NJP of 891010.

891219:  NJP for violation of UCMJ, Article 92 (2 specs): (1) Disobey a lawful written order, to wit: SqdnO 1700.2A (4)(b) by wrongfully consuming alcoholic beverages while under the legal drinking age on 891124, (2) Disobey a lawful written order, to wit: SqdnO 1700.2A (4)(b) by wrongfully consuming alcoholic beverages while under the legal drinking age on 891129, violation of UCMJ, Article 107: On 891129, make a false official statement to Medical Officer, to wit: I hit a wall with my fist.
         Award: Forfeiture of $250 per month for 2 months. Not appealed.

900110:  Applicant disenrolled from ADJ Course of Instruction for having a negative training attitude.
900313:  NJP for violation of UCMJ, Article 92 (3 specs): (1) Willfully disobeyed a lawful written order, to wit: SqdnO 11103.1D, Encl 2, par 30, by entering a male’s room on 900227, (2) Willfully disobeyed a lawful written order, to wit: SqdnO 11103.1D, Encl 2, par 4, by smoking in the bks on 900227, (3) Willfully disobeyed a lawful written order, to wit: SqdnO 1700.2A, par 4, subpar b, by consuming alcoholic beverages while under the legal drinking age on 900309, violation of UCMJ, Article 134: As a result of wrongful previous overindulgence in intoxicating liquor, incapacitated for the proper performance of her duties on 900309.
         Award: Forfeiture of $362 per month for 2 months, restriction for 60 days, Not appealed.
900406:  Applicant notified of intended recommendation for discharge by reason of misconduct due to minor disciplinary infractions. The least favorable characterization of service possible is under other than honorable conditions.
900406:  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.

900410:  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 your multiple violations of the UCMJ which resulted in three nonjudicial punishments.

900426:  SJA review determined the case sufficient in law and fact.

900503:  Commanding General, Marine Corps Base, Camp Lejeune, NC 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 19900509 under other than honorable conditions for misconduct due to minor disciplinary infractions (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. When a Marine’s service 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 two retention warnings and three nonjudicial punishment proceedings for violations of Articles 92, 107 and 134 of the UCMJ. The Applicant’s award at NJP suspended on 19891010 was vacated on 19891201 due to her continued misconduct. The Applicant’s willful overdose on medications required hospitalization and inpatient treatment. The Applicant was later disenrolled from her specialty school for having a negative training attitude. The Applicant’s conduct, which forms the primary basis for determining the character of her service, reflects her willful failure to meet the requirements of her contract with the Marine Corps and falls far short of that required for an upgrade of her characterization of service. Relief is not warranted.

Issue 2. The Applicant contends through counsel that she was “brought up on unsubstantiated charges due to her command’s sexual prejudice.” The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support her issue. There is no evidence in the record to support the contention that the Applicant’s nonjudicial punishments or subsequent administrative processing was the result of prejudice based on the Applicant’s gender. The Board found that the Applicant’s documentation supporting her claim of an improper counseling session between the Applicant and a warrant officer insufficient to overturn the presumption of regularity. Relief on this basis would be inappropriate.

Issue 3. 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. The NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review. After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that her discharge was appropriate and that her evidence of post-service conduct was found not to be sufficient to mitigate the misconduct for which she was discharged. Relief denied.

The following if provided for the edification of the Applicant. The Applicant has exhausted her opportunities for review by the NDRB. The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of naval service, if she desires further review of her case.


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. 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 92, disobey order/regulation and Article 107, false official statement.
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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