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USMC | DRB | 2005_Marine | MD0500455
Original file (MD0500455.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD05-00455

Applicant’s Request
The application for discharge review was received on 20050112. 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 20050428. 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. “Was discharged through a court martial for accidentally entering the wrong time in logbook and was charged with UA.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
No additional documentation submitted.

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                890727 - 900618  COG

 Period of Service Under Review :
Date of Enlistment: 900619               Date of Discharge: 930716

 Length of Service (years, months, days):

         Active: 03 00 28
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 49

 Highest Rank: LCpl                         MOS: 2311

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.3 (10)                      Conduct: 3.6 (10)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, LOA, SSDR, RSB

 Days of Unauthorized Absence: 76

 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 :
890516:  Inspector-Instructor, Wpns Co., 1 st Battalion, 23 rd Marines, Shreveport made Stragglers Orders for Private L_ S_ (Applicant) to report back to Commanding General, 3 rd FSSG, Okinawa, Japan MCC 1C2.

901216:  Unauthorized absence for Sub Unit 1 3dFSSG since 0001, 901216, failed to report to CG 3dFSSG FMFPCAC FPO San Fran CA, not later than 2400, 901215. Declared a deserter this date as of 0001, 901216 and dropped from the rolls of this org on Ruc 29001 on UD 008-91.

910301:  From Unauthorized absence (AWOL) at 1045, 910301, when Marine surrendered at 4 th MarDiv (Rein) FMF USMCR Shreveport LA. Termination of abs rpt by Ruc 29001 on UD 80-91dtd 910313.
910304:  Counseled for deficiencies in performance and conduct. [Concerning the lost of an Armed Forces Identification Card and failure to safeguard government property.] Necessary corrective actions explained, sources of assistance provided, disciplinary warning issued.
910508:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 86:
         Specification: Did on or about 16 December 1990, w/o authority, absent himself from his organization, to wit: 3d Force Service Group, located at Okinawa, Japan, and did remain so absent until on or about 1 March 1991.
         Finding: to Charge I and the specification thereunder, guilty.
         Sentence: Forfeiture of $495.00 per month for 1 month, reduced to E-1. Confinement for 30 days.
         CA action 910515: Sentence approved and ordered executed.
910508:  To confinement.

910602:  From confinement to full duty.

920922:  NJP for violation of UCMJ, Article 86 (1 spec):
 Specification 1: Unauthorized absence (AWOL) from 1700, 920903 until 0730, 920904.
Violation of UCMJ, Article 92 (1 Spec):
Specification 1: Wrongfully consuming alcoholic beverages under the legal age.
Awarded forfeiture of $205.00 per month for 1 month (suspended for 3 months), restriction and extra duties for 14 days. Not appealed.
921207:  NJP for violation of UCMJ, Article 86 (1 spec):
 Specification 1: Unauthorized absence (AWOL) on or about 1835, 921118 fail to go to appointed place of duty.
Awarded forfeiture of $440.00 per month for 2 months, restriction and extra duties for 45 days and reduction to E-2. Not appealed.


 930111:  Counseled for deficiencies in performance and conduct. [Repeated violation of the UCMJ and a pattern of misconduct.] Necessary corrective actions explained, sources of assistance provided and discharged warning issued.
930310:  NJP for violation of UCMJ, Article 134 (1 spec):
 Specification 1: On or about 1500 3MAR93, wrongful use of an official pass.
Awarded forfeiture of $407.00 per month for 2 months (suspended for 6 months), restriction for 45 days (suspended for 6 months), extra duties for 45 days and reduction to E-1. Not appealed.
930315:  Commanding Officer, Company A, Headquarters Battalion, requested that Pvt S_ be administratively discharged from the Marine Corps due to frequent misconduct. Commanding Officer’s comments: “Pvt. S_ (Applicant) has proven uncooperative in all attempts to improve his attitude and actions. I recommend Pvt. S_ (Applicant) be administratively discharged from the Marine Corps under other than honorable conditions.”

930317:  Commanding Officer, Headquarters Battalion, endorsement of Commanding Officer, Company A recommendation to Commanding General, Marine Corps Air Ground Combat Center (SJA), that the Applicant be administratively separated with an other than honorable discharge.

930329:  Commanding Officer, Headquarters Battalion, notifies Applicant that he intends to recommend to the Commanding General that the Applicant be discharged under other than honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by minor disciplinary infractions. The factual basis for this recommendation is failure to conform to the standards of the Marine Corps by being convicted by summary court- martial for violation of Article 86: Unauthorized absence, NJP punishment for violation of Articles 86 and 92: Unauthorized absence and consuming alcohol while under age, NJP for violation of Article 86: Failure to go to your appointed place of duty, NJP for violation of Article 134: Wrongful use of an official pass and being counseled concerning your repeated pattern of misconduct

930408:  Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board and to obtain copies of the documents used to support the basis for the separation.

 930505:  An Administrative Discharge Board, based upon preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to a pattern of misconduct, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

930524:  Commanding Officer, Headquarters Battalion, recommendation to Commanding General, Marine Corps Air Ground Combat Center, concurs with the recommendation of the Administrative Discharge Board, that Private S_ (Applicant) be discharged from the U. S. Marine Corps by reason of misconduct, specifically, pattern of misconduct and that the characterization of service be an under other than honorable conditions.

930526:  SJA review determined the case sufficient in law and fact.

 930527:  GCMCA, Commanding General, Marine Corps Air Ground Combat Center, advised the Commandant of the Marine Corps (MMSB) that the Applicant was discharged under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

930604:  Counseled for deficiencies in performance and conduct. [Disorderly conduct and providing misleading information to military authorities on 930531]. Necessary corrective actions explained, sources of assistance provided.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19930716 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. When the service of a member of the U.S. Marine Corps 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 2 retention warnings and 3 nonjudicial punishment proceedings for multiple violations of Articles 86, 92, and 134 of the UCMJ. Further, the Applicant pled guilty at a summary court-martial to a violation of Article 86 (UA for 76 days and declared a deserter). The Applicant elected to appear before an Administrative Discharge Board which, by unanimous vote, found that the Applicant had committed misconduct due to a pattern of misconduct, that the misconduct warranted separation, and recommended discharge under other than honorable conditions. 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 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 P1900.16D), 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 86, unauthorized absence for more than 30 days.
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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