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USMC | DRB | 2005_Marine | MD0501116
Original file (MD0501116.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. MD05-01116

Applicant’s Request
The application for discharge review was received on 20050622. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable or general (under honorable conditions). The Applicant requests a personal appearance discharge review before a traveling panel closest to Burbank, CA. The Applicant did not designate a representative on the DD Form 293. In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in Washington DC. The NDRB also advised that the Board first conducts a documentary review prior to any personal appearance hearing. Subsequent to the application, the Applicant designated the American Legion as the representative.
Decision

A documentary discharge review was conducted in Washington, D.C. on 20060112. 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 was discharged due to an accident I was involved in a military hummer in Hawaii. The investigation took approx 5-6 months. In the meantime I tried to maintain my motivation, but failed. My emotions flucunated during the investigation. I believe I was made an example out of the whole base. I loved the Marines, but was not flawless. I made mistakes I wish I never made. I was discharged 1 year from my EAS. I believe that I deserve I should have finished my term, now I’m trying to relieve my GI Bill for the police academy at Rio Hondo College.

Thank you
[signed]
K_ D_ (Applicant)”

 The Applicant’s representative submitted no issues for consideration.
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    19980526 - 19980719      COG
          Active: None

 Period of Service Under Review :
Date of Enlistment: 19980720             Date of Discharge: 20010606

 Length of Service (years, months, days):

 Active: 02 09 13 (Excludes lost time)
          Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 10 days
         Confinement:              24 days

 Age at Entry: 21

 Years Contracted: 4

 Education Level: 12                                 AFQT: 39

 Highest Rank: PFC                                   MOS: 3531

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.6 (7)                                Conduct: 3.5 (7)

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



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 :

990610:  Counseling: Advised of deficiencies in performance and conduct (At 0730 on 25 May 1999, UA from checking back in off of annual leave and did so remain UA until approximately 1300 on 26 May 1999), necessary corrective actions explained, sources of assistance provided and disciplinary warning issued.

990612:  Applicant to unauthorized absence at 1200 on 990612.

990623:  Applicant from unauthorized absence at 0800 on 990623.

990721:  NJP for violation of UCMJ, Article 86: On or about 1200, 12 Jun 99, MCBH Kaneohe Bay, HI, SNM did without authority absent himself from his unit and did so remain absent until 0800, 23 Jun 99.
         Award: Forfeiture of $251 per month for 1 month, restriction and extra duty for 14 days. Not appealed.

990806:  Applicant on unauthorized absence 0700-2200, 990806.

990810:  Counseling: Advised of deficiencies in performance and conduct (Violation of article 86 which resulted in receiving NJP on 21 Jul 99), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

990825:  Applicant unauthorized absence 1300-1500, 990825.

990831:  NJP for violation of UCMJ, Article 86: On or about 1300, 25 Aug 99, MCBN Kaneohe Bay, HI, did without authority absent himself from his unit and did so remain absent until 1500, 25 Aug 99.
         Award: Restriction for 7 days. Not appealed.

990910:  NJP for violation of UCMJ, Article 86: UA(AWOL) fr 0700, 990806 to 2200, 990806.
 Violation of UCMJ Article 92: Missed restriction sign in.
Violation of UCMJ Article 92: Flew to CONUS without authority.
Violation of UCMJ Article 107: Made a false official statement.
         Award: Forfeiture of $465 per month for 2 months, restriction and extra duty for 45 days, reduction to E-1. Not appealed.

000123:  Applicant found unresponsive from drinking an unknown amount of ETOH. [Extracted from medical record.]

000307:  Counseling: Advised of deficiencies in performance and conduct (Lost a pair of gortex gloves that were issued from battery supply during a deployment to Camp Fuji, Japan... failed to notify command of this situation until 2 months after the fact), necessary corrective actions explained and sources of assistance provided.

000313:  Applicant met with Substance Abuse Counselor and diagnosed Applicant as AXIS I: 303.90 Alcohol Dependence R/O. Applicant declined substance abuse treatment.

000403:  Substance Abuse Counselor found Applicant Alcohol Dependent.

001128:  Applicant reported to medical for recent motor vehicle accident.

010109:  Acknowledged understanding of eligibility but not recommended for promotion to LCpl for the month of Feb 01 promotion period because of lack of judgment. Applicant chose not to make a statement.

010220:  Acknowledged understanding of eligibility but not recommended for promotion to LCpl for the month of March 01 promotion period because of lack of judgment/maturity. Applicant chose not to make a statement.

010309:  Acknowledged understanding of eligibility but not recommended for promotion to LCpl for the month of April 01 promotion period because of lack of judgment/dependability. Applicant chose not to make a statement.

010406:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 91:
         Specification: Disobeyed order fr Cpl J_.
         Charge II: violation of the UCMJ, Article 92:
         Specification: Derelict on the performance of duties.
         Charge III: violation of the UCMJ, Article 107:
         Specification: Not found.
         Charge IV: violation of the UCMJ, Article 134:
         Specification: Operate a HMMWV in a reckless manner.
          Finding: to Charge I, II and the specifications thereunder, guilty. Charge IV with substitutions guilty. Charge III and the specification thereunder, not guilty.
          Sentence: Forfeiture of $695.00, reduced to E-1, confinement of 30 days.
         CA action 010413: Bn CO considered and rejected the SCM Officer’s recommendation to suspend all confinement in excess of 21 days. Sentence approved and ordered executed.

010406:  Applicant to confinement.

010429:  Applicant from confinement.

010503:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions. The least favorable characterization of service possible was under other than honorable conditions.
010503:  Applicant advised of rights and having elected not to consult, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

010503:  Commanding Officer, 1 st Battalion, 12 th Marines (Acting) recommended Applicant’s under other than honorable conditions discharge 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 (three offenses), disobeying a lawful order (three offenses), insubordinate conduct towards an noncommissioned officer, making a false official statement, and operating a HMMMV in a reckless manner, as supported by three page 11 counseling entries, three nonjudicial punishments, and summary courts-martial conviction. Commanding Officer’s comments: “The Respondent’s actions clearly indicate unsuitability for future military service; therefore I recommend that the Respondent be expeditiously discharge.”

010522:  Commanding Officer, 1 st Battalion (REIN), 12 th Marines recommended Applicant’s under other than honorable conditions discharge by reason of misconduct due to minor disciplinary infractions.

010531:  SJA review determined the case sufficient in law and fact.

010604:  GCMCA, Commanding General, Marine Corps Base Hawaii 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 20010606 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).

The Applicant contends that he was discharged “due to an accident.” The Applicant was discharged for misconduct due to minor disciplinary infractions. The Applicant had a documented history of misconduct that precipitated his discharge. The Applicant’s service was marred by three nonjudicial punishment proceedings and a summary court-martial conviction for violations of Articles 86, 91, 92, 107 and 134 of the UCMJ. The Applicant’s violations of Articles 91, 92, 107 and 134 are considered serious offenses. The Applicant was counseled on three occasions for his performance and conduct. 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 contends that he was “made an example” for the “whole base.” Through his misconduct, the Applicant met the criteria for discharge by reason of misconduct due to minor disciplinary infractions. The record contains no evidence of any wrongdoing by the Applicant’s Commanding Officer, or anyone else for that matter, in the discharge process. There is no indication that the Applicant was treated improperly or inequitably. Relief denied.

The Applicant contends that he was only one year away from his EAS. Marines are required to conform to the standards of good order and discipline and are subject to the Uniformed Code of Military Justice throughout their enlistment. 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. Relief denied.

The Veterans Administration determines eligibility for post-service benefits not the Naval Discharge Review Board. There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief. 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.

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, Article 92, disobey a lawful order/regulation, Article 107, false official statement or Article 134, reckless endangerment.

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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