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USMC | DRB | 2005_Marine | MD0500520
Original file (MD0500520.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD05-00520

Applicant’s Request
The application for discharge review was received on 20050126. 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 listed the Wisconsin Department of Veterans Affairs as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050516. 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 performance began to drop, after I reported a sexual assault by a superior supervisor. I felt I was treated as a victim and that a policy was either not in place or was not followed in treating me as an alleged victim. I believe that my performance and dedication to USMC warrants at the very Least a General Discharge, if not an Honorable. After my assault, I experienced a lot of loneliness and was always depressed.”

The Applicant’s representative submitted no issues for consideration.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Statement from Applicant, dated September 20, 2004 (2 pages)
Letter from Capt N_ D. W_, retired, dated September 20, 2004 (7 pages)
Character reference from Pastor, Siren Assembly of God, undated
12 newspaper articles
Mayo Clinic Health Letter, September 2002
Applicant’s DD Form 214
IRAM Standards of conduct, pages 4-41 and 4-43
Eligibility for benefits chart (3 pages)
E-mail for Captain R_ to Applicant, dated June 9, 1999
The Trauma Response article (2 pages)
Sexual Assault Among Females article (5 pages)
American Counseling Association article (2 pages)
Warning Signs of Trauma Related Stress article (2 pages)
139 pages from Applicant’s service/medical record
Two pages from Marine Corps Separation Manual, paragraph 6210 (pages 6-30-6-31)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                970624 - 980621  COG

 Period of Service Under Review :
Date of Enlistment: 980622               Date of Discharge: 010403

 Length of Service (years, months, days):

         Active: 02 09 12
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 42

 Highest Rank: LCpl                         MOS: 3051

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.2 (7)                       Conduct: 4.1 (7)

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR, LoA (2)

 Days of Unauthorized Absence: None

 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 :

990707:  Counseled for deficiencies in performance and conduct. [Poor judgment and irresponsible conduct and failure to adhere to rules and regulations. Specifically, I failed to obey an order by violating Camp Order 11100.1 by being in the same room with a male Marine with the hatch completely closed.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

991015:  Counseled for ineligibility for promotion due to being on weight control.
000210:  Counseled for deficiencies in performance and conduct. [Your substandard performance by being assigned to the remedial physical training program, specifically, your inability to maintain Marine Corps weight standards.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

000320:  Counseled for ineligibility for promotion due to being on weight control.
000406:  Counseled for deficiencies in performance and conduct. [Unauthorized absence from remedial PT from 000229 until 000303.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

000907:  NJP for violation of UCMJ, Article 86:
 Specification: Unauthorized absence from 0730-0850, 000728.
Awarded forfeiture of $563.00 per month for 1 month, restriction for 60 days, reduction to E-2. Forfeiture suspended for 6 months. Appealed 000911. Appealed denied: 000928.
000907:  Counseled for deficiencies in performance and conduct. [Unauthorized absence from your work section from 0730-0850, 000728.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
001003:  Counseled for deficiencies in performance and conduct. [Raising of voice. Needs to control her personal emotions toward fellow Marines, and or NCO. Disrespecting NCO is not tolerated.]

001015:  Vacate suspended forfeiture awarded at Commanding Officer’s NJP dated 000907.
010112:  NJP for violation of UCMJ, Article 86:
 Specification: Fail to go at the time prescribed on 0731-1530, 001230, to wit: report in from leave.
Awarded forfeiture of $521.00 per month for 2 months, restriction for 60 days, reduction to E-1. Forfeiture suspended for 6 months. Not appealed.
010122:  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 your continued involvement with military authorities as evidenced by three adverse entries on your page 11 and two nonjudicial punishments on your page 12.

010123:  Applicant notified of intended recommendation for discharge by reason of misconduct due to a pattern of misconduct. The least favorable characterization of service which you may receive is under other than honorable conditions.
010123:  Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board. [Date unreadable]
010125:  Applicant waived right to an Administrative Discharge Board conditioned upon the Commanding Officer’s approval and the Commanding General’s execution of a separation with characterization of general (under honorable conditions).
010209:  Applicant’s request for conditional waiver separation is disapproved.

 010307:  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, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

010319:  SJA review determined the case sufficient in law and fact.

010329:  Commanding General, Marine Corps Air Station, Cherry Point, NC 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 20010403 under other than honorable conditions for misconduct due to a pattern of misconduct (A). The Board presumed regularity in the conduct of governmental affairs (B). 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 (C and D).

Issue 1. The Applicant contends that her performance in the Marine Corps warrants at least a general discharge. 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 four retention warnings and two nonjudicial punishment proceedings for violations of Article 86 of the UCMJ. The Applicant’s punishment awarded at NJP on 20000907 was vacated on 20001015 indicating further misconduct. The Applicant’s conduct, which forms the primary basis for determining the character of her service, reflects her willful failure to meet the requirements of her contract with the Marine Corps and falls far short of that required for an upgrade of her characterization of service. Relief is not warranted.

The Applicant contends that her “performance dropped” as a result of the loneliness and depression she experienced after she reported a sexual assault by a superior. The Applicant bears the burden of overcoming the Government’s presumption of regularity through the presentation of substantial and credible evidence to support her assertion. There is no credible evidence in the record, nor has the Applicant produced any such evidence, to support the contention that her misconduct was the result of a traumatic personal experience or her report of assault by a supervisor. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case. While she may feel that she should not be held responsible for her pattern of misconduct, the record clearly reflects her willful misconduct and demonstrated she was unfit for further service. The evidence of record did not show that the Applicant was either not responsible for her conduct or that she should not be held accountable for her actions. Relief denied.

The following is provided for the edification of the Applicant. Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question. The Board discovered no impropriety after a review of Applicant’s case. 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 Naval service. 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. As of this time, the Applicant has not provided sufficient documentation for the Board to consider. 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 31 Jan 97 until 31 Aug 01.

B. 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.

C. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety .

 D. 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

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