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




ex-Pvt, USMC
Docket No. MD05-00793

Applicant’s Request

The application for discharge review was received on 20050328. 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 20050825. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no inequity in the characterization of the Applicant’s service was discovered by the NDRB and the Board's vote was 3-to-2 that the characterization of service shall not change. An impropriety in the Applicant's separation proceedings, however, was discovered and the Board’s vote was unanimous that the narrative reason for separation shall change. The discharge shall change to: UNDER HONORABLE CONDITIONS (GENERAL)/SECRETARIAL AUTHORITY; authority: MARCORSEPMAN Par. 6214, with a separation code of JFF1.

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PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“I was young, immature and made mistakes of which I am not proud. Examples of this are: (1) I stayed off-base with a friend and missed a cleaning assignment and was written up, (2) I failed an inspection because on the way to the inspection I wrecked my bicycle tearing my uniform and scuffing my shoes. I am not saying I wasn’t at fault, however, the disciplinary action(s) including reduction, restriction and extra duty given me as punishment were exaggerated. It was after this point I could do nothing right in the eyes of my Gunnery Sergeant and continually stayed in Trouble.
It was also during this period that I wrote Bad Checks and even though taken care of resulted in further disciplinary action. All of this, a testament to my immaturity at the time.

Applicant’s Remarks, as stated on the application:

"I was 18 years old when I joined the USMC. I did well in Boot Camp and was promoted to E-2. I was again promoted to E-3 while in school. When I was sent to the Fleet, I was immediately assigned to an Enlisted Club (not my MOS) where I washed dishes and cleaned the Bar every night after closing. This assignment was for approximately 3 months. When I returned to my squadron I spent a few months learning my job before being transferred to a new unit doing almost nothing for about six months. Upon return to my original unit I was unable to perform up to par because of the two temporary assignments listed above. I feel as though mistakes I made were magnified and harshly treated. Had I been allowed to perform my job and excel at it, the end result may have been different.
Since my discharge I have done well with my life. I have a degree (with honors), own my home and was a small business owner. With the highest respect for the Corps, request this application for discharge upgrade be given favorable consideration."


Documentation

In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:

Associate Degree of Arts from Community College of Denver, dated May 12, 2004
(2 copies)
Certificate of Membership Phi Theta Kappa International Honor Society, dated
November 18, 2003 (2 copies)
Applicant’s DD Form 214
Unofficial college course transcript, Spring term, dated March 25, 2005 (3 pages)

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PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

         Active: None
         Inactive: USMCR(J)                         910510 - 911229  COG

Period of Service Under Review :

Date of Enlistment: 911230               Date of Discharge: 940107

Length of Service (years, months, days):

         Active: 02 00 08
         Inactive: None

Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 59

Highest Rank: LCpl                         MOS: 0121

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency: 3.4 (7)              Conduct: 3.5 (7)

Military Decorations: None

Unit/Campaign/Service Awards: National Defense Medal, Rifle Sharpshooter Badge

Time Lost: None

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER HONORABLE CONDITIONS (GENERAL)/Misconduct - Minor disciplinary infractions (administrative discharge board required but waived), authority: MARCORSEPMAN Par. 6210.2.

Chronological Listing of Significant Service Events :

921216:  NJP for violation of UCMJ, Article 123a (2 specs):
Specification 1: Wrote a personal check on 921120 to Checkmate Cashing Service of Oceanside, CA of which he knowingly did not have sufficient funds for payment in full.
Specification 2: Did, on board MCB, Camp Pendleton, CA during Nov 92 utter 9 personal checks for purchase of goods of which he knowingly did not have sufficient funds in his checking account.
Awarded forfeiture of $205.00 per month for 1 month, extra duties for 30 days, reduction to E-2. Forfeiture and reduction suspended for 6 months. Not appealed.

930325:  Counseled for deficiencies in performance and conduct (lack of military bearing, lack of attention to detail, disobedience of a lawful order and disrespect to an NCO/SNCO). Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

930422:  Applicant submits rebuttal to page 11 entry dated 930325.

930517:  Counseled for deficiencies in performance and conduct (insubordinate conduct, disrespect to an NCO, lack of proficiency in job performance, inability to perform even minor task without supervision and frequent involvement of a discreditable nature with military/civilian authorities). Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

930528:  Vacating of suspended portion of sentence (forfeiture and reduction) awarded at NJP dated 921216 due to continued misconduct.

930622:  NJP for violation of UCMJ, Article 92:
Specification 1: Applicant, having knowledge of a lawful order issued by Capt E_ to inform his SNCOIC of his whereabouts after work hours (i.e., staying in barracks, staying in town, etc.), an order which it was his duty to obey, did, at Barracks 2408, Camp Pendleton, CA on or about 930502, fail to obey the same by staying in town without notifying his SNCOIC.
Specification 2: Applicant, on or about 930514, violated a lawful order to wit: SQDNO 5112.1B, dated 890623, by leaving the mailroom unsecured.
         Award: Forfeiture of $407 per month for 1 month, restriction for 14 days, reduction to E-1. Reduction suspended for 6 months. Not appealed.

931018:  Vacating of suspended portion of sentence (reduction) awarded at NJP
dated 930622. due to continued misconduct.

931018:  Counseled for deficiencies in performance and conduct (failure to properly prepare for a re-inspection of the Summer Service "C" Uniform on 931004). Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

931018:  Counseled for deficiencies in performance and conduct (unauthorized absence at 0630 on 931006). Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

931022:  Administrative Officer, Marine Helicopter Training Squadron 303, MCAS Camp Pendleton, CA submits a statement regarding the Applicant's proposed administrative separation. Administrative Officer comments: "Private Y_'s (Applicant's) inability to adapt to the military work environment has been a heavy burden on his assigned work section. While he exhibits no willful misconduct, his performance of daily duties is marked by a requirement for constant, person supervision. Basic military traits such as punctuality, dependability, thoroughness, and bearing are lacking. Private Y_ (Applicant) shows little progress in developing these traits despite continued counselling and assistance from supervisors....It is my estimation that Private Y_ (Applicant) will continue to require constant personal supervision and will continue to produce sub-standard results with regards to his responsibilities as an administrative clerk and as a Marine. I have discussed this matter with Private Y_ (Applicant) and we are in agreement that the best interests of he and the Marine Corps will be served by an expeditious administrative discharge."

931029:  Applicant failed to make a statement to page 11 entry of 931018 for UA.

931029:  Applicant notified of intended recommendation for discharge by reason of misconduct due to minor disciplinary infractions. Applicant advised that, while the least favorable characterization of service he may receive is under honorable conditions (general), the Commanding Officer, Marine Helicopter Training Squadron 303 was recommending to the separation authority that his characterization be honorable. The basis for this recommendation was the Applicant's minor disciplinary infractions.

931102:  Applicant advised of rights and having consulted with qualified counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

931102:  Commanding Officer, Marine Helicopter Training Squadron 303, MCAS Camp Pendleton, CA recommended discharge under honorable conditions (general) by reason of misconduct due to minor disciplinary infractions. Commanding Officer’s comments: "Misconduct due to minor disciplinary infractions; two NJP’s and three counseling entries."

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



931215:  GCMCA (Commanding General, 3d Marine Aircraft Wing, MCAS El Toro, CA) informed the Commandant of the Marine Corps that he is directing the Applicant's discharge under honorable conditions (general) by reason of misconduct due to minor disciplinary infractions.

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PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19940107 under honorable conditions (general) for misconduct due to minor disciplinary infractions (A and B). After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no inequity in the characterization of the Applicant’s service was discovered by the NDRB, and the Board's vote was 3-to-2 that the characterization of service shall not change. The Board did, however, discover an impropriety in the Applicant's separation proceedings. The Board’s vote was unanimous that the narrative reason for separation shall change. (C and D).

The Applicant contends that he was young and immature at the time of his service and infers that this lack of maturity should mitigate his misconduct. While the Applicant may believe that this is a mitigating factor, the Board found that the record clearly shows the Applicant was responsible for his actions and that he willfully and/or negligently committed violations of the Uniform Code of Military Justice (UCMJ). The Applicant's misconduct is clearly documented in his service record by the following:
o        nonjudicial punishment (NJP) on 19 921216 for violation of UCMJ Article 123a Uttering checks with insufficient funds (2 specifications);
o        NJP on 19 930622 for violation of UCMJ Article 92 Failure to obey order or regulation (2 specifications);
o        vacating, on 19930528, of suspended portion of NJP (forfeiture and reduction) awarded on 19921216, for continued misconduct;
o        vacating, on 19931018, of suspended portion of NJP (reduction) awarded on 19930622, for continued misconduct;
o        formal counseling for deficiencies in performance and conduct on 19 930325, 19930517, 19931018, and 19931018 .
The record does not contain, nor did t he Applicant provide, any evidence to suggest that he was not responsible, or should not be held accountable, for his misconduct. Relief on this basis is denied.

The Applicant contends that the treatment he received for his disciplinary mistakes was harsh and was rooted in his being denied the ability to perform his job proficiently. The Board recognizes that life in the Marine Corps presents certain hardships and challenges to the men and women who volunteer to serve this country. These hardships and challenges, however, do not excuse a Marine from accountability for his or her actions. T he Board thoroughly reviewed the Applicant's service records, to include the record of his separation proceedings, to determine if his discharge was equitable. The Board found that:
o        the Applicant's record clearly shows that he willfully and negligently committed misconduct, as outlined above;
o        the Applicant was advised on 19931029 of the rights afforded to him as part of the administrative separation process and consulted with legal counsel certified under Article 27B of the UCMJ;
o        the Applicant discussed the issue of an administrative separation with his officer-in-charge, as documented on 19931022, and agreed with his OIC that his and the Marine Corps' best interests would be served by his expeditious administrative discharge.
The record is absent of evidence showing that the Applicant was treated unfairly by anyone in his command and/or involved in the discharge process. Further, the Board advises the Applicant that duty assignments outside a Marine's parent command and/or primary MOS are not an excuse for misconduct committed by that service member.
The Board did not find any evidence that these assignments prejudiced his command in its decisions to discipline or administratively separate him. Relief on this basis is denied.

The Applicant contends that, since his discharge, he has done well in his civilian life, including earning a degree (with honors), owning his own home, and being a small business owner. The Applicant is advised that there is no law or regulation, which provides for an unfavorable discharge to 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 Board recognizes his associates degree and his other academic accomplishments but, at this time, the Applicant has not provided sufficient post-service documentation for the Board to consider relief on this basis.

The Board did discover an impropriety in the Applicant's administrative separation. When a service member is processed for administrative separation on the basis of misconduct due to minor disciplinary infractions, such processing may not be initiated until:
o        the service member has been formally counseled on his or her deficiencies in performance and/or conduct, as reflected in appropriate service records;
o        the service member has been afforded an opportunity to overcome those deficiencies, as reflected in appropriate service records.
The Applicant's service records confirm that he was formally counseled on 19 931018, at which time he received a discharge warning . He was then notified on 19931029 (11 days after his discharge warning) of his command's intent to recommend him for administrative separation. The record is absent of any evidence indicating that the Applicant violated the retention warning he was given. This action denied the Applicant of an appropriate amount of time within which to correct his deficiencies. As such, the Board found the Applicant's administrative separation to be improper and voted unanimously to change that narrative reason for separation. Relief on this basis is granted.

In cases where no other reason for separation set forth in the Marine Corps Separation Manual is appropriate, but where separation of a member is considered to be in the best interest of the service, the Secretary of the Navy has the authority to direct the separation of that service member prior to the expiration of his or her term of service. The Applicant’s chain-of-command determined that separation from the Marine Corps was warranted but denied him of due process. Under the authority described above, the Board changes the narrative reason for separation to SECRETARIAL AUTHORITY. Relief is provided.

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 92 Failure to obey order or regulation.

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 .

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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