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USMC | DRB | 2005_Marine | MD0500790
Original file (MD0500790.rtf) Auto-classification: Denied


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
 DISCHARGE REVIEW
DECISIONAL DOCUMENT
FOR OFFICIAL USE ONLY

ex-Pvt, USMC
Docket No. MD05-00790

Applicant’s Request
The application for discharge review was received on 20050330. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to entry level separation or uncharacterized. The Applicant requests a documentary record discharge review. The Applicant did not designate a representative on the DD Form 293.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 20051027. 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 by reason of misconduct due to a pattern of misconduct.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“Members of the Board, I request that my discharge of (under other than Honorable) be upgraded to RE-3. I would very much so be given another opportunity if request is granted to fulfill my military career. While I was in the military many bad decisions were made on my behalf. Choices that I didn’t give much thought. Lack of responsibility had a lot to do with this case. I’ve been out now for over 2 yrs and everything I want to do is not possible for me under this condition Working for the state, county, or even parks & recreation is almost impossible under this condition. I consider myself to be more aware, mature, and thoughtful in any situation. My conduct has been outstanding. Since I’ve been discharged I have attended college but had to resign because of lack of funds. I know that if my request is granted I will enlist back into the military and become the best that I can possibly be. I’ve obtained the title, “Marine” the best the United States military has to offer. I know if I can be forged into the best, I can do anything. So I ask with this rebuttle not to be moved to something I don’t deserve such as (Honorable discharge) but to be upgraded to RE-3. I hope that my request is granted for the sole purpose of another chance. I’m proud to be an American and I want to express that with my service as it should have been done with my first Enlist. I’ve waived my right for council, because I feel that the members of the Board will review and grant my request in full.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (Member 1 and 4)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    20000721 - 20000731      COG
          Active: None

 Period of Service Under Review :
Date of Enlistment: 20000801             Date of Discharge: 20030825

 Length of Service (years, months, days):

 Active: 03 00 25
          Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: None
         Confinement:              None

 Age at Entry: 19

 Years Contracted: 4

 Education Level: 12                                 AFQT: 32

 Highest Rank: LCpl                                  MOS: 1391

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.9 (2)*                               Conduct: 2.9 (2)*

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): National Defense Service Medal, Marksman Rifle Badge

*Extracted from Unit Punishment Book (5812) entries dated June 19, 2003 and February 10, 2003


 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 :

000721:  Pre-service waiver for juvenile felony offense(s) granted.

010223:  Counseling: Advised of deficiencies in performance and conduct (Violation of Art. 108. At MCD, Ft. Lee, VA. In that on 010217 left a Comfort Inn room in a state of disrepair and obvious vandalism. The motel is demanding a reimbursement exceeding $300.00. Applicant advised that this type of conduct does not reflect well and will not be tolerated. This type of conduct denotes very poor judgement on Applicant’s behalf. Marine are required to maintain high standards 24 hours a day.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

021107:  Counseling: Advised of deficiencies in performance and conduct (Unauthorized absence. Specifically, on or about 0545, 021016, without authority, absent from appointed place of duty, to wit: MCAS, CHERPT, Marine Dome.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

021205:  Counseling: Advised of deficiencies in performance and conduct (Unauthorized absence. Specifically, on or about 021114, without authority, absent from appointed place of duty, to wit: H&HS’s fieldday formation.), necessary corrective actions explained, sources of assistance provided.

030206:  NJP for violation of UCMJ, Article 92: In that LCpl R_ (Applicant) of, HQHQRON, MCAS CHERPT, having knowledge of a lawful order issued by Cpl D_, USMC and Cpl P_, USMC not to drive any of the government vehicles because it was snowing, an order which it was his duty to obey, did, on or about 030123, fail to obey the same by taking the government vehicle out to drive.
 Violation of UCMJ, Article 108: In that LCpl R_ (Applicant) of, HQHQRON, MCAS CHERPT, did on or about 030123, without proper authority, willfully damage a 1999 F-150 pick-up truck, of a value of about $607.81, by doing doughnuts at Tank Farm “A” located on board MCAS, CHERPT, and colliding with another vehicle
Violation of UCMJ, Article 92: In that LCpl R_ (Applicant) of, HQHQRON, MCAS CHERPT, violate a lawful general order, to wit: LEGALADMINMAN chap 15, part 15002, par 3, by withholding BAH with dependents rate for family support, in the amount of $1,725.00.
Violation of UCMJ, Article 134: In that LCpl R_ (Applicant) of, HQHQRON, MCAS CHERPT, did, on or about 030131, wrongfully commit substantiated spouse abuse and child neglect.
         Award: Forfeiture of $350 per month for 2 months, restriction and extra duty for 45 days, reduction to PFC. Not appealed.

030214:  Counseling: Advised of deficiencies in performance and conduct (Disobeying lawful orders, Damage to Government Property, and Spousal Abuse. Specifically, on or about 030123, having knowledge of a lawful order issued by Cpl D_, USMC, and Cpl P_, USMC not to drive any of the government vehicles because it was snowing, an order which it was Applicant’s duty to obey, failed to obey the same by taking the government vehicle out to drive. Violation of a lawful general order, to wit: chap 15, part 15002, par 3, by withholding BAH with dependents rate for family support, in the amount of $1,725.00. Specifically, on or about 030123, without proper authority, willfully damaged a 1999 F-150 pick-up truck, of a value of $607.81, by doing doughnuts at tank farm “A”, located on board MCAS, CHERPT, and colliding with another vehicle. Specifically, on or about 030131, wrongfully committed substantiated spousal abuse and child neglect.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

030219:  Counseling: Advised of deficiencies in performance and conduct (Driving while intoxicated. Specifically on or about 0220, 030201, Applicant was stopped in Morehead City, North Carolina for driving at the speed on 30 miles per hour in a 20 miles per hour zone. Further investigation revealed that Applicant was driving while intoxicated with a BAC of .09%.), necessary corrective actions explained, sources of assistance provided.

030618:  NJP for violation of UCMJ, Article 86: In that PFC R_ (Applicant) of HQHQRON, MCAS, CHERPT, did on or about 2300, 030607, without authority, absent himself from his unit, to wit: MCAS, Cherry Point’s Fuel Department, and did remain so absent until, on or about 1400, 030608.
         Award: Forfeiture of $532 per month for 2 months, restriction and extra duty for 45 days, reduction to E-1. No indication of appeal found in service record.

030626:  Counseling: Advised of deficiencies in performance and conduct (Unauthorized absence. Specifically, on or about 2300, 030607, without authority, absent from MCAS, Cherry Point’s Fuel Department, until on or about 1400, 030608.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

030717:  NJP for violation of UCMJ, Article 86: In that PVT R_ (Applicant) of HQHQRON, MCAS, CHERPT, did on or about 0545, 030711, without authority absent himself from his place of duty at which he was required to be, to wit: Pull up bars, located on board MCAS, CHERPT.
 Violation of UCMJ, Article 90: In that PVT R_ (Applicant) of HQHQRON, MCAS, CHERPT, having received a lawful command from LtCol G_, his superior commissioned officer, not to drink on restriction, did at MCAS, CHERPT, on or about 030629, willfully disobey the same.
Violation of UCMJ, Article 128: In that PVT R_ (Applicant) of HQHQRON, MCAS, CHERPT, did on or about 030629, assault Cpl F_ by striking him.
         Award: Forfeiture of $124 per month for 2 months, extra duty for 30 days, forfeiture suspended. Adsep for pattern of misconduct. Not appealed.

030721:  Counseling: Advised of deficiencies in performance and conduct (Unauthorized absence. Violation of a lawful command, and assault. Specifically, on or about 0545, 030711, without authority, absent from place of duty, to wit: pull up bars. Having received a lawful command from LtCol G_, Applicant’s superior commissioned officer, not to drink on restriction, on or about 030629, willfully disobeyed the same. On or about 030629, assault another Marine by striking him.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

030825:  DD Form 214: Applicant discharged under other than honorable conditions by reason of misconduct due to a pattern of misconduct, MARCORSEPMAN Par. 6210.3.



Service Record Book did not contain the Administrative Discharge package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030825 by reason of misconduct due to a pattern of misconduct (A and B) with a service characterization of under other than honorable conditions. After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D). The Board presumed regularity in the conduct of governmental affairs (E).

 When a Marine’s service 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 five retention warnings and three nonjudicial punishment proceedings for violations of Articles 86, 90, 92, 108, 128 and 134 of the UCMJ. The evidence of record also shows that civil authorities discovered the Applicant under the influence of alcohol while operating a motor vehicle, a violation of Article 111, when the Applicant was detained for a traffic violation. The Applicant’s violations of Articles 90, 92, 108, 111 and 128 are considered serious offenses. The Applicant’s conduct is considered a violation of the special consideration given the Applicant during his enlistment as evidenced by the Applicant’s waiver for a preservice felony. The 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 Marine Corps and falls far short of that required for an upgrade of his characterization of service. Relief is not warranted.

The Applicant requested the board change his character of service to entry level separation or uncharacterized. By regulation, members notified of intended recommendation for discharge within the first 180 days of enlistment are eligible for an uncharacterized or entry-level separation characterization of service unless there were unusual circumstances regarding a servicemember’s performance or conduct that merit another characterization. The Applicant was discharged after three years of service and was not eligible for the type of characterization he requests. Relief denied.

The Applicant contends that his misconduct in the Marine Corps can be attributed to “bad decisions” and a lack of responsibility. The Applicant’s misconduct is well documented. Regarding the Applicant’s issue, the evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Relief denied.

The Applicant contends that his post-service conduct has been “outstanding.” 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, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities. As of this time, the Applicant has not provided any post-service documentation for the Board to consider. Relief on this basis is not warranted.

Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, NDRB is not authorized to change a reenlistment code. An unfavorable “RE” code is, in itself, not a bar to reenlistment. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter. Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.

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 90, disobey a superior commissioned officer, Article 92, failure to obey an order/regulation, Article 108, willfully damage military property, Article 111, drunken driving or Article 128, assault.

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.

E. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs.

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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