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USMC | DRB | 2005_Marine | MD0500973
Original file (MD0500973.rtf) Auto-classification: Denied


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

ex-PFC, USMC
Docket No. MD05-00973

Applicant’s Request
The application for discharge review was received on 20050518. The Applicant requests the Discharge 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 designate a representative on the DD Form 293.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 20050831. 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 minor disciplinary infractions.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“I am submitting my 293 Form because I have grown up. I was young and very Immature as a young MARINE. I have made my mistakes and suffered because of them. My mistakes were 7 yrs ago. And I know now that I was very immature. I had a Medical Condition, “Asthma.” I struggled with that all my life but never so much as in the Corps. I was being discharged medically until I sighed the wrong paper for the discharged. Then I made a mistake. I was given an “Other Than Honorable Discharge: I am trying to move on with my life and work for the State of California. I Truly Believe The Panel will put this in their Best interest to allow me to upgrade my discharge. I really need this to be done. Like I said I Am sorry for what I did. I would also like to Use my G.I. Bill. Several of my Marine Brothers have done much more than I did and they have better and have upgraded their discharges so they can too, go on with their lives. I believe that once again you will upgrade my discharge and I will be able to go on with my life.

Thank you
“Semper Fi”
[signed]
J_ T. C_ (Applicant)”

 Documentation
Only the service record book was reviewed. The Applicant did not provide additional documentation for the Board’s consideration.

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    19950331 - 19960304               OG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19960305             Date of Discharge: 19980814

 Length of Service (years, months, days):

 Active: 02 05 10
          Inactive: None

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

 Age at Entry: 19

 Years Contracted: 4

 Education Level: 12                                 AFQT: 77

 Highest Rank: LCpl                                  MOS: 0331

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.9 (5)                                Conduct: 3.7 (5)

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): Rifle Marksman, Sea Service Deployment Ribbon


Character, Narrative Reason, and Authority of Discharge (at time of issuance):
UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MARCORSEPMAN Par. 6210.2.

 Chronological Listing of Significant Service Events :

950331:  Pre-service waiver granted (CG level, for adjudicated serious offense(s)).

960305:  Pre-service waiver granted (unknown type).

961203:  Counseling: Advised of deficiencies in performance and conduct (Specifically wearing earrings in both ears while on liberty and lying to a SNCO), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

970618:  NJP for violation of UCMJ, Article 86.
         Specification: At 0600, on 970609 to 0900 970609 was UA from appointed place of duty, L Co. formation.
 Violation of UCMJ, Article 134: On 970609, as a result of wrongful previous overindulgence in intoxicating liquor was incapacitated for the proper performance of his duties.
          Award: Forfeiture of $200 per month for 1 month, restriction and extra duty for 14 days. Forfeiture suspended for 6 months. Not appealed.

970820:  NJP for violation of UCMJ, Article 86.
         Specification: UA (AWOL) Fm 1730, 970708 to 2030 970708. SNM fully understands that half of the company had been activated for CIF platoon duties and the other half of the company was preparing to deploy back to Hawaii, therefore, abandoning his duties.
         Award: Forfeiture of $244 per month for 1 month, restriction and extra duty for 14 days. Not appealed.

970903:  Forfeiture of pay awarded at NJP on 970618 vacated due to continued misconduct.

971031:  NJP for violation of UCMJ, Article 91.
         Specification: On 971010 at or about 2300 SNM did call SSgt A_ “A cracker lover and Uncle Tom,” as well as telling SSgt A_, “Shut the f_ up, SSgt,” or words to that effect.
 Violation of UCMJ, Article 108: On 971010 SNM at or about 2300 SNM was observed knocking holes in the walls of his barracks rooms, resulting in damage of less than $100.00.
Violation of UCMJ, Article 134: In that on 971010 at or about 2300, was drunk and disorderly.
         Award: Forfeiture of $505 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2. Forfeiture for 1 month suspended for 6 months. Not appealed.

980125:  Counseling: Advised of deficiencies (Exercise inducted asthma which significantly limits your ability to fulfill the duties required in the infantry. Your rights with regards to further medical evaluations and medical board proceedings were explained to you and you wished to proceed with an administrative separation.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

980205:  Applicant to outpatient treatment for alcohol abuse.

980310:  Counseling: Advised of deficiencies in performance and conduct (Failure to obey orders and regulations specifically while conducting a health and comfort inspection on 980307 you were found in a room where there was hard liquor present, which was in violation of an order given to you by your Platoon Sergeant), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

980331:  Applicant’s response to 6105 entry.

980406:  Counseling: Advised of deficiencies in performance and conduct (Your past violation of articles 86, 91, 108, and 134 of the UCMJ and that failure violations can result in processing you for separation from the Marine Corps for a pattern of misconduct), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

980406:  Counseling: Advised of deficiencies (Exercise inducted asthma which significantly limits your ability to fulfill the duties required in the infantry. Your rights with regards to further medical evaluations and medical board proceedings were explained to you and you wished to proceed with an administrative separation.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

980423:  Applicant completed outpatient treatment for alcohol abuse. To maintain positive progress Applicant advised to continue weekly meetings with SACO for 6 months or until service discharge.
980424:  Forfeiture of pay awarded at NJP on 971031 vacated due to continued misconduct.

980428:  Applicant notified of intended recommendation for under other than honorable conditions discharge by reason of misconduct due to minor disciplinary infractions. The least favorable characterization of service possible is under other than honorable conditions. The factual basis for this recommendation was numerous violations of the UCMJ to include unauthorized absence (two occasions), drunk and disorderly, insubordinate conduct towards a NCO, incapacitation for performance of duty, failure to obey orders (two offenses), and destruction of government property.
980428:  Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.
980428:  Commanding Officer, 3d Battalion, 3d Marines, 3d Marine Division, Marine Corps Base Hawaii, recommended to Commanding General, Marine Corps Base Hawaii, via Commanding Officer, 3d Marine (Rein). Applicant’s discharge with a under other than honorable conditions by reason of misconduct due to minor disciplinary infractions. The factual basis for this recommendation was numerous violations of the UCMJ to include unauthorized absence (two occasions), drunk and disorderly, insubordinate conduct towards a NCO, incapacitation for performance of duty, failure to obey orders (two offenses), and destruction of government property.

980501:  Counseling: Advised of deficiencies in performance and conduct (Failure to abide by Marine Corps grooming standards, specifically not shaving. While at an ATM on base, SNM was approached by the MCBH SgtMaj and was not shaven. You have displayed a complete disregard for the standards the Marine Corps has established for all Marines), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued. Applicant chose to make a statement.

980506:  Applicant’s rebuttal to page 11 entry.

980508:  Commanding Officer, 3d Marines (Rein), Marine Corps Base Hawaii, forwarded to Commanding General recommending approval of Applicant’s discharge with a under other than honorable conditions by reason of misconduct due to minor disciplinary infractions.

 980713:  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 such misconduct warranted separation, and recommended discharge with a under other than honorable conditions.

980803:  SJA review determined the case sufficient in law and fact.

980805:  GCMCA, Commander, Marine Corps Base Hawaii, directed the Applicant's discharge with a 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 19980814 by reason of misconduct due to minor disciplinary infractions (A and B) with a service characterization of under other than honorable conditions. 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 (C and D).

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 required two pre-service enlistment waivers, one for the adjudication of a serious offense. The waivers represent the special consideration given to the Applicant during the enlistment process and the Applicant’s subsequent misconduct violated that special consideration and trust. The Applicant’s service was marred by three retention warnings and three nonjudicial punishment proceedings for violations of Articles 86, 91, 108 and 134 of the UCMJ. The Applicant’s record is also marred by the vacation of two suspended NJP-awards due to the Applicant’s continued misconduct. 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 implies that he “sighned [sic] the wrong paper” and was being discharged for medical reasons. Pertinent regulations stipulate that separations for misconduct take precedence over potential separations for other reasons. Whenever a member is being processed through the Physical Evaluation Board, and subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended. The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings. If the action includes either a punitive or administrative discharge for misconduct, the medical board report is filed in the member’s terminated health record. Relief is not warranted.

The Applicant contends that he was very young and immature during his enlistment. While he may feel that his immaturity was the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service. 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 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 P1900.16E), effective 31 Jan 97 until 31 Aug 2001.

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 91, insubordinate conduct.
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 .

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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