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USMC | DRB | 2005_Marine | MD0500310
Original file (MD0500310.rtf) Auto-classification: Denied


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

ex-PFC, USMC
Docket No. MD05-00310

Applicant’s Request
The application for discharge review was received on 20041130. 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 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 20050601. 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. 6210.6.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION


 Issues, as stated

No issues were submitted by the Applicant.


Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
No additional documentation was submitted by the Applicant.

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                991202 - 000102  COG

 Period of Service Under Review :
Date of Enlistment: 000103               Date of Discharge: 030923

 Length of Service (years, months, days):

         Active: 03 08 19
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 78

 Highest Rank: LCpl                         MOS: 8152

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: NMA*                          Conduct: NMA

 Military Decorations: None

 Unit/Campaign/Service Awards: RSB, PSB, NDSM

 Days of Unauthorized Absence: None

*No Marks made available for review.

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MARCORSEPMAN Par. 6210.6.

 Chronological Listing of Significant Service Events :

010524:  NJP for violation of UCMJ, Article 91: Having received a lawful order from Sgt C___ and First Sergeant C___, a noncommissioned officer and a staff noncommissioned officer, then known by the said LCpl, to be an NCO and SNCO, to not consume alcohol, an order which it was his duty to obey, did on or about 010428, willfully disobey the same; violation of UCMJ, Article 92: Did on or about 010428, fail to obey a lawful company regulation, to wit: Company order 1100.2, by wrongfully consuming alcohol under the age of 21, a regulation which was his duty to obey.
         Award: Forfeiture of $584.00 pay per month for 2 months, restriction for 60 days, reduction to E-2. No indication of appeal in the record.

010907:  NJP for violation of UCMJ, Article 134: In that Pvt M___ was in debt with his apartment management by dishonorably failing to pay his water and sewer bill of $225.66; violation of UCMJ, Article 134: Check worthless, making and uttering, by dishonorably failing to maintain funds (check #1019); violation of UCMJ, Article 134: Check, worthless, making and uttering, by dishonorably failing to maintain funds (check #1023).
         Award: Restriction for 45 days, reduction to E-1. No indication of appeal in the record.

010921:  Counseled for deficiencies in performance and conduct. [Your financial irresponsibility, by failing to pay your financial obligations in a timely manner.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued

011016:  NJP for violation of UCMJ, Article 91 (3 Specifications): Spec 1: Did on or about 011012, dishonorably failed to pay rent for the month of October 01; Spec 2: Dishonorably failed to pay utility bills; Spec 3: Dishonorably failed to pay water/sewer bill. Award: Restriction for 60 days. No indication of appeal in the record.

011019:  Counseled for deficiencies in performance and conduct. [Three page 11 entries and three appearances at nonjudicial punishment.] Applicant was advised that he was being processed for administrative separation under other than honorable conditions.

020125:  NJP for violation of UCMJ, Article 92: On or about 020121, failed to obey a lawful company regulation, to wit: Company order 11000.2, by wrongfully possessing alcohol and selling alcohol to an under age minor a regulation which it was his duty to obey. Award: Restriction for 30 days. No indication of appeal in the record.

020802:  Counseled for deficiencies in performance and conduct. [Failure to be at appointed place of duty, lack of judgment, honesty, issues with authority and maintaining grooming standards.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

030423:  Counseled for deficiencies in performance and conduct. [Conviction of driving while under the influence of alcohol and violation of MCO P5300.12A and MCO P1700.24B.] Applicant advised that he will receive nonjudicial punishment and will be processed for administrative separation.
030430:  Applicant notified of intended recommendation for discharge with the least favorable characterization under other than honorable conditions by reason of misconduct due to a pattern of misconduct.
030430:  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.

030430:  Commanding Officer, Marine Corps Security Force Company, Naval Air Station, Patuxent River, MD recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct. The factual basis for this recommendation was the Applicant's fifth NJP on 030425 and his past NJPs on 020125, 011015, 010907, 010524 as well as your request for Administration Separation dated 011127.

030630:  Second request from processing authority to separation authority found in the record: Marine Corps Security Force Company, Naval Air Station, Patuxent River, MD change-of-command: the new Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense. The factual basis for this recommendation was the Applicant's fifth NJP dated 030425 and his past NJPs dated 020125, 011015, 010907, 010524 as well as his request for Administration Separation dated 011127.

030909:  SJA review determined the case sufficient in law and fact.

030915:  GCMCA Commander, 4th Marine Expeditionary Brigade, Camp Lejeune, NC directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030923 under other than honorable conditions for misconduct due to the commission of a serious offense (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).

The Applicant introduced no decisional issues for consideration by the NDRB. As such, the Board reviewed the Applicant's military records to determine if his discharge from service was proper and equitable and, thus, upgrade to his characterization of service warranted.

 The Board found that the Applicant's other than honorable discharge was proper and equitable. The NDRB, under its responsibility to examine the propriety and equity of an Applicant's discharge, will change the reason for discharge if such a change is warranted. In this case, the Board requested additional information from the Applicant's former unit regarding his administrative processing for separation. After receiving additional information and reviewing all available records, the Board found that there is no evidence of inequity in the Applicant's discharge. The Bo ard, however, could not find a second notification from the Applicant's command advising him of his being processed for misconduct by reason of the commission of a serious offense . The absence of documentation reflecting such notification, in itself, does not establish impropriety as the NDRB presumes regularity in the conduct of governmental affairs. As such, the Board presumed that the Applicant was afforded the appropriate due process during the processing of his case. Additionally, t he Applicant was advised of his rights and elected to waive the right to a hearing before an administrative discharge board.

Further, the Applicant's misconduct is clearly documented. The NDRB found that this misconduct outweighed any mitigating and extenuating factors contained in the Applicant's record. Aggravating factors noted by the Board included four formal counseling entries for deficiencies in performance and conduct and four nonjudicial punishment (NJP) proceedings for violations of the following articles of the UCMJ:
91 Insubordinate conduct, 91 Willfully disobeying (3 specifications), 92 Failure to obey order or regulation (2 specifications), 134 Making and uttering a worthless check
(2 specifications), and 134 Failure to pay debt. An upgrade of the Applicant's discharge is not warranted. Relief on this basis is denied.

The following is provided for the edification of the Applicant. 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 Marine Corps. The NDRB is authorized 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. The Applicant has not provided documentation for the Board to consider. Relief on this basis is not possible at this time.

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. The Applicant can provide documentation to support any claims of post-service accomplishments or any other evidence related to his discharge at that time. 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 01 September 2001 until Present).

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 an 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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