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USMC | DRB | 2005_Marine | MD0500333
Original file (MD0500333.rtf) Auto-classification: Denied


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

ex-PFC, USMC
Docket No. MD05-00333

Applicant’s Request
The application for discharge review was received on 20041210. 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 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-Pattern of misconduct (with administrative discharge board), authority: MARCORSEPMAN Par. 6210.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“1. I feel that based on the problems that I had on active duty did not justify an “OTH” type of discharge. These were minor infractions. I had no court martial’s. They were minor “Non Judicial Punishments.”

“2. I had requested a general discharge and my unit commander Cpt. Y_ said he would recommend it based on my outstanding service and taking into consideration my personal problems that needed to be taken care of. I could not handle them on active duty.”

“3. I was having problems with my spouse, had 2 separate operating a vehicle (personal) while under the influence of alcohol over 18 months; grant to me this would not seem severe enough to require an OTH discharge.”

”4. My commander, first sergeant, both recommended the General discharge but the board gave an OTH. This Board had no knowledge of me as a Marine and the otherwise good character of my service.”

Attachment Issue:

5. “My conduct and efficiency rating/behavior and proficiency marks were mostly pretty good”
I received awards and decorations.
I received letters of commendations.
I had combat service.
I was so close to finishing my tour that it was unfair to give me a bad discharge.
My record of NJP’s/Article 15’s indicates only isolated or minor offenses.
My ability to serve was impaired because of marital and family problems.
Personal problems impaired my ability to serve.
I tried to serve and wanted to, but just couldn’t or wasn’t able to.
My discharge was based on many offenses, but they were mostly only minor offenses.”


Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Reference Letter from SSGT W_ S_, dated August 4, 1992
Eleven pages from service record

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                890329 - 890425  COG

 Period of Service Under Review :
Date of Enlistment: 890426               Date of Discharge: 921130

 Length of Service (years, months, days):

         Active: 03 07 05
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4

Education Level: 12                        AFQT: 58

 Highest Rank: LCpl                         MOS: 1142

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.3 (8)                       Conduct: 3.5 (8)

 Military Decorations: None

 Unit/Campaign/Service Awards: RSB, REB, LOA, NDSM, SSDR, SASM(w2*), MM, NUC, MUC

 Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct-Pattern of misconduct (with administrative discharge board), authority: MARCORSEPMAN Par. 6210.3.

 Chronological Listing of Significant Service Events :

890718:  Counseled for deficiencies in performance and conduct. [Disobedience of a lawful order by a non-commissioned officer by hitting a fellow recruit with his fist.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
900420:  NJP for violation of UCMJ, Article 111: Did on or about 900325, operate a motor vehicle while drunk.
 Awarded forfeiture of $400.00 pay per month for 1 month ($200.00 pay per month suspended for 3 months). Not appealed.
920114:  NJP for violation of UCMJ, Article 111: Did on or about 0430, 911221, operate a motor vehicle while intoxicated, BAC .13%.
 Awarded forfeiture of $200.00 pay per month for 2 months, 30 days extra duty, 45 days restriction (35 days suspended for 6 months). Not appealed.
920401:  NJP imposed and suspended on 920114 for a period of 6 months is hereby vacated and 12 days punishment is ordered executed.

920409:  NJP for violation of UCMJ, Article 91: On or about 920224, was disrespectful in language toward Sgt R_. Violation of UCMJ, Article 92: Did on or about 920224, having knowledge of a lawful order issued by Sgt R_ “to cammie the generator,” an order it was his duty to obey, fail to obey same.
Awarded restriction and extra duties for 14 days. Not appealed.
920422:  Counseled for deficiencies in performance and conduct. [Frequent involvement in incidents portraying disorderly conduct, fighting with fellow Marines and disrespect toward NCO’s.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

920430:  NJP for violation of UCMJ, Article 92: Having knowledge of a lawful order issued by LtCol R_, to wit: 12 days restriction, which was vacated from a previous NJP dated 920114, an order which it was his duty to obey, did on 920418, fail to obey the same. Violation of UCMJ, Article 92: Having knowledge of a lawful order issued by LtCol R_, to wit: 12 days restriction, which was vacated from a previous NJP dated 920114, an order which it was his duty to obey, did on 2345, 920425, fail to obey the same.
Awarded forfeiture of $234.00 pay per month for 1 month (suspended for 6 months), 7 days correctional custody (suspended for 6 months). Not appealed.
920518:  NCOIC, SACC indicates Applicant unsuccessfully completed Level II workshop.

920616:  Applicant notified of intended recommendation for discharge with the least favorable characterization under other than honorable conditions by reason of misconduct, specifically, a pattern of misconduct and minor disciplinary infractions. Company commander recommended separation under honorable conditions (general).
920617:  Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

920707:  Counseled for deficiencies in performance and conduct. [Not recommended for promotion for the month of July 92, due to NJP received on 920409, Article 91 and 920507, Article 92.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

920720:  Counseled for your unsuccessful completion of Level II workshop due to being UA from class. You have shown a pattern of misconduct based upon your past performance. You are recommended for administrative discharge.

920722:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and due to minor disciplinary infractions . The factual basis for this recommendation was 4 NJP’S.

920728:  NCOIC, SACC indicates Applicant was diagnosed as not dependent on alcohol by a medical officer on 920723.

920819:  Counseled for deficiencies in performance and conduct. [Awarded conduct mark of 2.0 due to NJP received on 920428.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
920914:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to a pattern of misconduct and due to minor disciplinary infractions, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

921005:  Counseled for deficiencies in performance and conduct. [Failure to conform to military regulations and failure to obey a lawful order given to you.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
921005:  NJP for violation of UCMJ, Article 91 (3 Specifications):
 Specification 1: Was on board MCAS, Yuma, on or about 0550, 920925, disrespectful in language toward SSgt B_ a SNCO. Specification 2: Having received a lawful order from SSgt B_, a SNCO, to come to at ease, an order which it was his duty to obey, did willfully disobey the same. Specification 3: Having received a lawful order from SSgt B_, a SNCO, to come back here, an order which it was his duty to obey, did willfully disobey the same.
Awarded forfeiture of $440.00 pay per month for 2 months, restriction and extra duties for 45 days, reduction to PFC. Not appealed.
921105:  SJA review determined the case sufficient in law and fact.

921109:  GCMCA [Commanding General, 3d MAW] 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 19921130 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. T he Applicant’s service was marred by award of nonjudicial punishment (NJP) on five occasions for disrespect to SNCOs, disobedience of lawful orders, and drunken driving. 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. Despite the Applicant’s claim that his offenses were minor, his conduct falls short of that required for an honorable or under honorable (general) characterization of service. Relief denied.

Issues 2 and 4. The Applicant’s immediate chain of command does not determine the character of service for administrative separations. Despite their recommendations, the determination by the Applicant’s separation authority, Commanding General, 3d Marine Air Wing, to separate the Applicant under other than honorable conditions was proper and equitable. Relief denied.

Issues 3 and 5. The Board found that the Applicant’s age, education level, and test scores qualified him for enlistment. While he may feel that marital and personal problems were factors that contributed to his actions, the record clearly reflects his disregard for the requirements of military discipline and demonstrated that he was unfit for further 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. The positive aspects of the Applicant’s service do not mitigate his misconduct to a degree that would warrant relief to the characterization of service. Relief denied.
The Applicant’s discharge characterization accurately reflects his service to his country. 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 P1900.16D), 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 91, disrespect to a SNCO; Article 92, disobey a lawful order; and Article 111, drunken driving.
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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