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USMC | DRB | 2005_Marine | MD0500573
Original file (MD0500573.rtf) Auto-classification: Denied


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

ex-LCpl, USMC
Docket No. MD05-00573

Applicant’s Request
The application for discharge review was received on 20050210. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a personal appearance hearing discharge review before the Board in the Washington National Capital Region. The Applicant did not list any representative on the DD Form 293. In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

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. “The discharge is not proper because it is stated I had a pattern of misconduct. If this is the case, I would not have been recommended & elected to represent my platoon (Motor Transport) in a Battalion Level Corprals Board. Not to mention I had a meritorious mast. These are not the privileges of someone with a pattern of misconduct. I feel I was young and naïve and delt with unfairly. Had I known the result of such a discharge I would not have waived my rights to a review with the board.”

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: USMC              None
         Inactive: USMCR(J)                950627 - 950809  COG

 Period of Service Under Review :
Date of Enlistment: 950810               Date of Discharge: 980310

 Length of Service (years, months, days):

         Active: 02 07 01
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

Education Level: 12                        AFQT: 53

 Highest Rank: LCpl                         MOS: 3631

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.3 (6)                       Conduct: 4.1 (6)

 Military Decorations: None

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

 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 :

960202:  Counseled for deficiencies in performance and conduct. [Failure to complete homework assignment, sleeping in class, and failure of Module 200.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

960208:  Counseled for deficiencies in performance and conduct. [Academic drop from the FAG course of instruction.] Necessary corrective actions explained, sources of assistance provided, and discharge warning issued.
960216:  NJP for Violation of UCMJ, Article 92: Did on or about 960203, wrongfully disobey a lawful written order, to wit: SqdnO 1601.1S, by being in civilian attire while on Duty Section.
 Awarded forfeiture of $300.00 pay per month for 1 month, restriction for 30 days. Not appealed.
960506:  NJP for Violation of UCMJ, Article 86: Failed to go at the time prescribed to Bldg M-607, for firewatch at 1700 on 960428.
 Awarded forfeiture of $100.00 pay per month for 1 month, restriction and extra duties for 7 days. Not appealed.
960506:  Counseled for deficiencies in performance and conduct. [Failure to go at the time prescribed to Bldg M-607 for duty at 1700 on 960428.] Necessary corrective actions explained, sources of assistance provided, and discharge warning issued.

970709:  Counseled for deficiencies in performance and conduct. [Simple assault to LCpl O___ at 1530 on 970628.] Necessary corrective actions explained, sources of assistance provided, and discharge warning issued.
971112:  NJP for Violation of UCMJ, Article 111: Reckless driving on or about 970926, physically controlled a vehicle in a reckless manner by eluding military police; Violation of UCMJ, Article 92: Did on or about 970930, having knowledge of a lawful order to wit: BnO 11101.1R, fail to obey the same by wrongfully possessing one bottle of hard liquor (gin) in the barracks.
 Awarded forfeiture of $150.00 pay per month for 1 month, restriction and extra duties for 14 days. Not appealed.
971217:  Summary Court-Martial.
         Charge I: Violation of the UCMJ, Article 128. Specification: Did on or about 971202, unlawfully strike Pvt K_ R_, in the chest with his fist, bite him on the head and the ear, and repeatedly kick him in the ribs with a shod foot.
         Charge II: Violation of the UCMJ, Article 134. Specification: Drunk and disorderly on or about 971202.
         Finding: to Charge I and the specification thereunder, guilty. To Charge II and the specification thereunder, guilty.
         Sentence: Confinement for 30 days, reduced to E-2 (suspended for 3 months).
         CA action 971219: Approved and ordered executed.
971230:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

971230:  Commanding Officer, 3d Medical Bn, 3d FSSG 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 respondent’s one summary court-martial, three nonjudicial punishments, and four counseling entries on page 11 of his service record. CO's comments (verbatim): Despite efforts to encourage him toward honorable, productive service, he has responded with further acts of misconduct. By his actions, he has demonstrated that he has absolutely no potential for further military service.

971231:  Applicant advised of rights and having consulted 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.

980126:  SJA review determined the case sufficient in law and fact.

980130:  GCMCA, Commanding General, 3d Force Service Support Group 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 19980310 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 claims that his discharge was improper as his record shows he did not have a pattern of misconduct. The Applicant is informed by the Board that, to be discharged due to a pattern of misconduct, a Marine need only have two or more discreditable involvements with civil and/or military authorities or two or more instances of conduct prejudicial to good order and discipline within one enlistment. In the Applicant's case, the NDRB found that a pattern of misconduct was established by the following aggravating factors contained in the record:
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, 92 Disobeying a lawful order (two total specifications), and 111 Reckless driving; and
o        a summary court-martial for violations of the following Articles of the UCMJ:
128 Assault consummated by battery (G) and 134 Disorderly conduct (G).
 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. Therefore, relief on this basis is denied.

The Applicant implies that the disciplinary problems he encountered during his period of service were the result of his being young and naive, and for this, he was dealt with unfairly. 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. The hardships and challenges of military life, however, do not excuse a Marine from accountability for his or her actions or omissions. There is no evidence in the record to suggest that the Applicant was not responsible for his misconduct or that he should not be held accountable for his actions. There is no evidence in the record that the Applicant was not treated equitably by his commanding officer or anyone else involved in the discharge process. The record shows that the Applicant did consult with legal counsel certified under Article 27B of the UCMJ and did waive his right to present his case before an administrative discharge board. The NDRB found that the Applicant was treated, and that his service was characterized, equitably. 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. As of this time, the Applicant has not provided any documentation for the Board to consider.

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 31 Jan 97 until 31 Aug 01.

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 128 Assault consummated by battery.
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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