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USMC | DRB | 2005_Marine | MD0500262
Original file (MD0500262.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD05-00262

Applicant’s Request
The application for discharge review was received on 20041115. 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 20050316. 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/Conduct triable by courts-martial (request for discharge for the good of the service), authority: MARCORSEPMAN Par. 6419.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION


 Issues, as stated

 Applicant’s issues, as stated on the application:

1. “My discharge was for writhing Bad Checks that I took full responsibility for. My record will show that I made restitution for them before my discharge.

I would like you to consider my age & limited knolige of balancing a checking account.

Please consider my remorse and love of country & The Corp.

Please Read my Request Letter (attached)

Thank you for considering my request.

[signed] (Applicant)”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s letter, dated October 27, 2004 (2 pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                900522 - 910218  COG

 Period of Service Under Review :
Date of Enlistment: 910219               Date of Discharge: 930205

 Length of Service (years, months, days):

         Active: 01 11 17
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 46

 Highest Rank: PFC                          MOS: 0311

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.1 (5)                       Conduct: 3.1 (5)

 Military Decorations: None

 Unit/Campaign/Service Awards: RMB, NDSM, SSDR, MM

 Days of Unauthorized Absence: 3

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

UNDER OTHER THAN HONORABLE CONDITIONS/Conduct triable by courts-martial (request for discharge for the good of the service), authority: MARCORSEPMAN Par. 6419.

 Chronological Listing of Significant Service Events :

920205:  NJP for violation of UCMJ, Article 134:
 Specification: With intent to promote disloyalty of a member of the armed forces on 920130, to wit: communicate to SSgt W_ that he didn’t go into Olongapo city, RP on the night in question, which statement was disloyal to the United States.
Awarded forfeiture of $197.00 per month for 1 month, restriction and extra duties for 14 days. Forfeiture, restriction and extra duty suspended for 6 months. Not appealed.
920226:  Counseled for deficiencies in performance and conduct. [Make and utter bad check(s) in the total amount of $480.00 and frequent involvement with military authorities.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

920226:  Vacate forfeiture, restriction and extra duty awarded at CO’s NJP dated 920205.
920707:  NJP for violation of UCMJ, Article 86 (2 specs):
 Specification 1: Fail to go at the time prescribed to appointed place of duty on 0000, 920602-0030, 920602, to wit: accountability formation.
Specification 2: Fail to go at the time prescribed to appointed place of duty on 0730, 920617-0755, 920617, to wit: morning formation.
Awarded forfeiture of $250.00 per month for 2 months, restriction for 45 days, reduction to E-1. Forfeiture suspended for 6 months. Not appealed.
920925:  Counseled for deficiencies in performance and conduct. [Repeated violations of Article 123a. Uttering worthless checks in the amount of $66.50 and frequent involvement with military authorities. Being UA/AWOL from signing in on Battalion Restriction several times.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

921211:  Charges preferred for violations of the Uniform Code of Military Justice (UCMJ) Article 86 (2 specs): (1) Fail to go at the time prescribed to appointed place of duty, to wit: company formation on 1800, 920912, (2) Unauthorized absence from 921113 to 921115; Article 121: Steal a pair of Mustang Slip Joint Pliers on 920906, the property of the Marine Corps Exchange and Article 123a (26 specs): Making and uttering 26 worthless checks with insufficient funds totaling $1884.62.

921223:  Applicant, having consulted with counsel certified under UCMJ Art 27b, requested discharge for the good of the service to escape trial by court- martial. In the request the Applicant noted that his counsel had fully explained the elements of the offenses for which he was charged and that he understood the elements of the offenses. He further certified a complete understanding of the negative consequences of his actions and that characterization of service would be under other honorable conditions. Specifically, he admitted guilt to one or more of the charges or some lesser-included offense thereof, of the charges preferred against him, for which a punitive discharge is authorized. In particular, he admitted guilt to violating Article 86, unauthorized absence.

930113:  SJA review determined the case sufficient in law and fact.

930115:  GCMCA [Commanding General, 1 st Marine Expeditionary Brigade] determined that Applicant had no potential for further service, that separation in lieu of trial by court-martial was in the best interest of the service, and directed discharge under other than honorable conditions by reason of conduct triable by courts-martial.

 930127:  NJP for violation of UCMJ, Article 121:
 Specification: Steal a pair of sunglasses, the property of Foodland store in Honolulu, HI on 1310, 930124.
Awarded forfeiture of $183.00 per month for 1 month, restriction and extra duties for 14 days. Not appealed.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

 Discussion

The Applicant was discharged on 19930205 under other than honorable conditions in lieu of trial by court-martial (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. On 19921223, the Applicant requested discharge for the good of the service to escape trial by court-martial. In the request the Applicant noted that his counsel had fully explained the elements of the offenses for which he was charged and that he was guilty of one or more of the offenses for which a punitive discharge is authorized. He further certified a complete understanding of the negative consequences of his actions and that characterization of service could be under other than honorable conditions. 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.

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 86, 121 and 134 of the UCMJ. The Applicant’s punishment suspended on 19920205 was vacated on 19920226 due to continued misconduct. Further, the Applicant’s 26 specifications of violating Article 123a, 2 specifications of violating Article 86, to include a 3-day absence, and violation of Article 121 preferred against him on 19921211 were never adjudicated. 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 Applicant contends that his problems in the Marine Corps can be attributed to his limited knowledge of balancing a checking account and his age. While he may feel that his immaturity and inexperience were the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service. The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions. 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 6419, SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL, 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 121, larceny, or Article 123a, checks, insufficient funds, intent to deceive.

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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