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USMC | DRB | 2005_Marine | MD0500848
Original file (MD0500848.rtf) Auto-classification: Denied


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

ex-PVT, USMC
Docket No. MD05-00848

Applicant’s Request
The application for discharge review was received on 20050419. The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions. The Applicant requests a personal appearance hearing before the Board in the Washington, D.C. Metropolitan area. 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. The Applicant did not list any representative on the DD Form 293.
Decision

A documentary discharge review was conducted in Washington, D.C. on 20050811. 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 – Minor disciplinary infractions (with administrative discharge board), authority: MARCORSEPMAN Par. 6210.2.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

 “My discharge was inequitable on a incident that was not my fault and was corrected by my wife at the time on the charge of bad check.”
Applicant’s Remarks: “I am requesting a upgrade to my service record and some corrections to my records. I have never forger anything, that is what’s stating on my record. I have lost many jobs on this issue. At the time of my NJP I was young and careless of not looking at my documents at the time. I recently found out why I was turned down for certain types of employment. I would like to get this corrected as well as an upgrade.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
None were submitted by Applicant

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                         900410 - 901029  COG

 Period of Service Under Review :
Date of Enlistment: 901030               Date of Discharge: 930730

 Length of Service (years, months, days):

         Active: 02 09 01                  [Does not exclude lost time]
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 32

 Highest Rank: PFC                          MOS: 2512

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.5 (7)              Conduct: 3.0 (7)

 Military Decorations: None

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

 Days of Unauthorized Absence: 6

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct-Minor disciplinary infractions (with administrative discharge board), authority: MARCORSEPMAN Par. 6210.2.

 Chronological Listing of Significant Service Events :

911014:  NJP for violation of UCMJ, Article 92: On or about 0300, 910806 failure to obey a lawful order by driving on base revocation; violation of UCMJ, Article 92: On or about, 910816 failure to obey a lawful order by driving on state revocation.
 Awarded forfeiture of $439.00 pay per month for 2 months, and 30 days correctional custody unit. Not appealed.
911024:  Counseled for deficiencies in performance and conduct. [Failure to keep sufficient funds in his checking account for checks #123, 123 and 125.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

920212:  NJP for violation of UCMJ, Article 92: SNM did on or about 920206 knowingly violate his base driving suspension by operating LCpl A___’s POV aboard MCB CamLej as evidenced by a PMO stop for violating the posted speed.
 Awarded forfeiture of $482.00 pay per month for 2 months, restriction and extra duties for 45 days. Not appealed.
920630:  Counseled for deficiencies in performance and conduct. [Writing worthless checks to the Marine Corps Exchange, routinely driving on state and base revocations and knowingly violating specific direct order.] Necessary corrective actions explained, sources of assistance provided and disciplinary warning issued. Advised that his misconduct necessitates the commissioning of an administrative separation.

920921:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 86.
         Specification: UA from appointed place of duty 920719, CamLej, NC.
         Charge II: violation of the UCMJ, Article 90.
         Specification: Disobeyed a superior commissioned officer when ordered not to drive on or off base 920715, CamLej, NC.
Charge III: violation of the UCMJ, Article 92.
          Specification: Disobeyed a lawful general order, BO P5560.2J by wrongfully operating a motor vehicle while on state/base revocation on 920715, CamLej, NC.
         Charge IV: violation of the UCMJ, Article 123a:
         Specification: Wrongfully and willfully wrote checks without having sufficient funds, worth $375.00, from 920701 to 920716, CamLej, NC.
         Charge V: violation of the UCMJ, Article 134:
         Specification: While having been placed on restriction by Co Comdr chose to break restriction, 920816, CamLej, NC.
         Finding: to Charges I through V, and the specifications thereunder, guilty.
         Sentence: Forfeiture of $500.00 pay per month for 1 month, reduced to E-1, and confinement for 30 days.
         CA action 930419: Sentence approved and ordered executed.

920921:  To confinement.

921006:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

921014:  From confinement.
930507:  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 minor disciplinary infractions.
930507:  Applicant advised of rights and having elected not to consulted with counsel, elected to appear before an Administrative Discharge Board.
930507:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions. The factual basis for this recommendation was the respondent’s summary court-martial conviction of 21 September 1992 and his two nonjudicial punishments of 14 October 1991 and 12 February 1992.

930604:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to minor disciplinary infractions, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

930626:  To unauthorized absence at 0801, 930626.

930702:  From unauthorized absence at 0730, 930702.

930702:  To confinement.

930713:  From confinement.
930714:  SJA review determined the case sufficient in law and fact.

930719:  Commanding General, 2d Marine Division, directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19930730 under other than honorable conditions for misconduct due to minor disciplinary infractions (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).

 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 a retention warning, two nonjudicial punishment proceedings and a summary court-martial conviction for violations of Articles 86, 90, 92, 123a and 134 of the UCMJ. Subsequent to the Applicant’s Administrative Discharge Board, the Applicant went to unauthorized absence for six days, a violation that was never adjudicated. 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. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. Relief is not warranted.

The Applicant contends that his discharge was inequitable because it was based on an “incident that was not my fault and was corrected by my wife at the time on the charge of bad check.” The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that the Applicant was not responsible for any misconduct for which he was subject to NJP proceedings. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case. However, even if the Applicant could show that he was not responsible for violations of Article 123a, the Applicant’s numerous infractions of four other Articles of the UCMJ would still make an under other than honorable conditions discharge by reason of minor disciplinary infractions proper and equitable. 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 P1900.16D), 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 and order/regulation.

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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