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USMC | DRB | 2005_Marine | MD0500551
Original file (MD0500551.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD05-00551

Applicant’s Request
The application for discharge review was received on 20050202. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. 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 20050519. 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. “I have learned a valuable lesson from the citation that happen”


 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214


PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: None

 Period of Service Under Review :
Date of Enlistment: 000223               Date of Discharge: 020422

 Length of Service (years, months, days):

         Active: 02 02 00
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 34

 Highest Rank: LCpl                         MOS: 0151

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.7 (6)                       Conduct: 3.5 (6)

 Military Decorations: None

 Unit/Campaign/Service Awards: RMB, NDSM, CoA

 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 :

000717:  NJP for Violation of UCMJ Article 86, Unauthorized absence at 1950 on
         000711; Violation of UCMJ Article 92 (3 specifications): (1) Disobey a
        direct order from Sgt S_ on 000711 by not telling him what room SNM was drinking in, (2) Disobey a direct order from SSgt R_ on 000711 to not drink while assigned to Security Forces, (3) Derelict in the performance of duties on 000711 by being intoxicated and unable to post for duty; Violation of UCMJ Article 91 (2 specifications): (1) Treat Sgt S_ with contempt on 000711 by telling him the wrong Marine he was consuming alcohol with, (2) Treat GySgt S_ with contempt on 000711 by telling him he wasn’t drinking.
         Awarded forfeiture of $263.00 per month for 1 month, restriction and extra duties for 14 days. Not appealed.
010312:  Counseled for deficiencies in performance and conduct. [Poor judgment was exercised in operating a borrowed vehicle, which Applicant was instructed not to borrow from LCpl T_, and continued to drive on a state suspension/revocation upon base.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
010718:  Counseled for deficiencies in performance and conduct. [Disrespect towards NCOs and having an improper shave. Specifically, on or about 010706 by loosing military bearing and walking away while being inspected and on 010716 by failing to be properly shaved when showing up to physical training which is unacceptable by the standards of the Marine Corps and will not be tolerated.] Necessary corrective actions explained, sources of assistance provided, and disciplinary warning issued.
010822:  Counseled for deficiencies in performance and conduct. [Improper hygiene, specifically on 010822, came to work without a clean shave, which is unacceptable by Marine Corps Order and will not be tolerated.] Necessary corrective actions explained and disciplinary warning issued.
010827:  NJP for Violation of UCMJ Article 86 (4 specifications): (1) Fail to go at the time prescribed to his appointed place of duty on 010809, to wit: Remedial PT and Section PT, (2) Fail to go at the time prescribed to his appointed place of duty on 010811, to wit: Remedial PT and Section PT, (3) Fail to go at the time prescribed to his appointed place of duty on 010814, to wit: Remedial PT and Section PT, (4) Fail to go at the time prescribed to his appointed place of duty on 010815, to wit: Remedial PT and Section PT.
 Awarded forfeiture of $323.00 per month for 1 month, restriction and extra duties for 14 days. Forfeiture suspended for 6 months. Not appealed.
010906:  Applicant informed eligible but not recommended for promotion to corporal for October 2001 promotion period because of recent NJP.

011010:  Applicant informed eligible but not recommended for promotion to Corporal for the period of September 2001 through February 2002 because of a suspended sentence of NJP held on 010827.

011030:  Suspended forfeiture awarded at Commanding Officer’s NJP of 010827 vacated for continued misconduct.

011128:  NJP for Violation of UCMJ Article 86 (2 specifications): (1) Unauthorized absence from 0730 to 0930 on 011023, (2) Unauthorized absence from 0715 to 0725 on 011024; Violation of UCMJ Article 123a Uttering a check without sufficient funds in the amount of $176.47.
 Awarded forfeiture of $584.00 per month for 2 months, restriction and extra duties for 45 days, reduction to E-2. Forfeiture for 1 month suspended for 6 months. Not appealed.
020211:  Suspended forfeiture awarded at Commanding Officer’s NJP of 011128 vacated due to continued misconduct.

020211:  Counseled for deficiencies in performance and conduct. [Unauthorized absence; specifically, failure to be at appointed place of duty (PT) at 0530 on 020211.] Necessary corrective actions explained, sources of assistance provided, and disciplinary issued.
020301:  Summary Court-Martial.
         Charge I: violation of the UCMJ Article 86 (3 Specifications):
         Specification 1: Absent from appointed place of duty at 1830 on 011227, to wit: extra duty muster.
         Specification 2: Absent from appointed place of duty at 0930 on 020105, to wit: extra duty muster.
         Specification 3: Absent from appointed place of duty at 0545 on 020128, to wit: physical training formation.
         Charge II: violation of the UCMJ Article 123:
         Specification: With intent to defraud on 020109, to wit: falsely make the signature of Chief Warrant Officer 2 M_ D. C_ on a loan application.
          Finding: to Charge I and specification 2 and 3, and Charge II and the specification, thereunder, guilty. Charge I and specification 1, thereunder, not guilty.
          Sentence: Forfeiture of two-thirds of pay for one month (total of $681.00), confinement for 30 days, reduced to E-1.
         020301 CA action: Sentence ordered to be executed.

020301:  Applicant to confinement.

020324:  Applicant from confinement.



020326:  Applicant notified of intended recommendation for discharge by reason of misconduct due to a pattern of misconduct. Applicant advised that the least favorable characterization of service that he may receive is under other than honorable conditions.
020327:  Commanding Officer, Headquarters Bn, MAGTF Training Command 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 summary court-martial, numerous nonjudicial punishments, and counseling sessions.

020328:  Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to waive all rights.

020415:  SJA review determined the case sufficient in law and fact.

020416:  GCMCA, Commanding General, Marine Air Ground Task Force Training Command, Twentynine Palms, CA, 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 20020422 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: The Applicant states that he has learned a valuable lesson from the experience during his time in the U.S. Marine Corps and infers that his disciplinary problems were the result of immaturity. The NDRB recognizes that serving in the Marine Corps is challenging and that our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country. Most Marines serve honorably and therefore earn their honorable discharges. In fairness to those members, commanders and separation authorities are tasked to ensure that undeserving Marines receive no higher characterization than is due. In the Applicant's case, the NDRB found that aggravating factors outweighed any mitigating and extenuating factors contained in the record. Aggravating factors noted by the Board included:
o        four formal counseling (Page 11) entries for deficiencies in performance and conduct;
o        three nonjudicial punishment (NJP) proceedings for violations of the following Articles of the UCMJ: 86 Unathorized absence (7 total specifications), 91 Insubordinate conduct (2 total specifications), 92 Disobeying a lawful order
(3 total specifications), and 123a Uttering a check without sufficient funds; and
o        a summary court-martial for violations of the following Articles of the UCMJ: 86 (3 specifications) and 123 Forgery.
The NDRB found that the Applicant's service was equitably characterized. Relief on this basis is denied.

Additionally, The NDRB, under its responsibility to examine the propriety of an Applicant's discharge, will change the reason for discharge if such a change is warranted. The Board found that there was no evidence of impropriety or procedural irregularities in the Applicant's discharge. The Applicant's misconduct was clearly and properly documented and he acknowledged and waived his rights to administrative review. The Applicant was afforded the appropriate due process during the processing of his case. Relief on this basis is not warranted.

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 any documentation for the Board to consider so, relief based on post-service conduct 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 P1900.16F), effective 01 Sep 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 123 Forgery.
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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