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USMC | DRB | 2005_Marine | MD0500267
Original file (MD0500267.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD05-00267

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 and the reason for the discharge be changed to administrative separation. The Applicant requests a documentary record review. The Applicant did not list any representative on the DD Form 293.

Decision

A documentary review was conducted in Washington, D.C. on 20050324. 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. “My discharge was inequitable because I was told that I was being given a discharge by reason of Administration separation.”
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)                940110 - 940608  COG

 Period of Service Under Review :
Date of Enlistment: 940609               Date of Discharge: 960923

 Length of Service (years, months, days):

         Active: 02 03 15         (Does not exclude lost time)
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

 Education Level: 12                        AFQT: 67

 Highest Rank: LCpl                         MOS: 0313

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.4 (9)                       Conduct: 3.2 (9)

 Military Decorations: None

 Unit/Campaign/Service Awards: REB, NDSM

 Days of Unauthorized Absence: 30

 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 :

950530:  Counseled for deficiencies in performance and conduct. [Underage and irresponsible drinking.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
950628:  NJP for violation of UCMJ, Article 92 (3 specs):
 Disobeyed a verbal order on 950602, Violated BnO P3000.1B on 950602, Violated Base Order 1700.6H.
Violation of UCMJ, 107 (2 specs):
False official statement on 950603, False official statement on 950602.
Awarded forfeiture of $478.00 per month for 1 month, confinement for 30 days, reduction to E-2. Not appealed.
960302:  NJP for violation of UCMJ, Article 86:
 Absent from appointed place of duty on 960224.
Awarded forfeiture of $227.00 per month for 1 month, restriction and extra duties for 14 days. Not appealed.
960415:  NJP for violation of UCMJ, Article 111:
 Drove reckless on 960403.
Awarded forfeiture of $437.00 per month for 2 months, restriction and extra duties for 45 days, reduction to E-1. Forfeiture for 1 month suspended for 6 months. Not appealed.
960812:  Special Court Martial:
         Charge I: violation of the UCMJ, Article 86:
         Specification 1: Failure to go,
         Specification 2: Failure to go,
         Specification 3: Failure to go,
         Specification 4: Failure to go,
         Specification 5: Failure to go,
         Specification 6: Failure to go,
         Specification 7: Failure to go,
         Specification 8: Failure to go,
         Specification 9: Unauthorized absence from 0700, 960526 to 0700, 960624. (30 days/surrendered).
         Charge II: violation of the UCMJ, Article 128
         Specification: Assault
         Findings: to Specification 1 of Charge I, not guilty, to Specifications 2 through 9 of Charge I, guilty, to Charge I guilty, to Charge II and the sole specification thereunder, not guilty.
         Sentence: Confinement for 60 days, forfeiture of $300 per month for 2 months.
         CA 960828: Sentence approved and ordered executed.

960813:  Applicant notified of intended recommendation for discharge by reason of misconduct due to a pattern of misconduct. The least favorable characterization of service authorized is under other than honorable conditions.
960813:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27(b), elected to waive all rights.

960813:  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 Applicant ’ s special court-martial held on 960812.

960919:  SJA review determined the case sufficient in law and fact.

960920:  Commander, 2d Marine Division, U.S. Marine Corps Forces, Atlantic 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 19960923 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: Normally, to permit relief, an impropriety or inequity must have existed during the period of enlistment in question. No such impropriety or inequity is evident during the Applicant’s enlistment. When the service of a Marine 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. T he Applicant’s service was marred by multiple unauthorized absences, multiple orders violations and reckless driving, and underage drinking. This misconduct resulted in three separate nonjudicial punishment proceedings and one special court-martial for violations of UCMJ Articles 86, 92, and 111. 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 United States Marine Corps. Such conduct falls far short of that expected of a member of the U.S. military and does not meet the requirements for an upgrade of his characterization of service. Relief is not warranted.
The Applicant contends his discharge was inequitable because the reason should have been administration separation. Contrary to the Applicant ’ s contention, administration separation is not an authorized narrative reason for sep aration. The evidence of record shows the Applicant was properly notified that he was being processed by reason of misconduct due to pattern of misconduct. The record also reveals that the Applicant signed his name indicating his understanding of the discharge processing. The Applicant ’ s contention that he was told his discharge would read administration separation is without merit. 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 18 Aug 95 until 30 Jan 97.

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, failure to obey order or regulation.
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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