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USMC | DRB | 2005_Marine | MD0501122
Original file (MD0501122.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. MD05-01122

Applicant’s Request
The application for discharge review was received on 20050621. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable and the Narrative Reason for Separation be changed to “Convenience of the government & reenlistment code change to RE-1.” The Applicant requests a personal appearance discharge review before a traveling panel closest to Honolulu, HI. 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 the Washington National Capital Region. The NDRB also advised that the Board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20051221. 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 and reason for 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:

“I feel that my discharge was undue because of personal problems I had at the time that were not properly addressed. The problems affected me emotionally and mentally The following are a list of issues that were not addressed by my superiors:
1). Brother was arrested and placed on trial for murder
2). Brother died from insulin overdose
3). Marital problems.
4). Found out wife was pregnant from someone else
5). Began drinking heavily.
6). Began experiencing financial difficulties.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s letter, dtd June 8, 2005

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    19900215 - 19900904      COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19900905             Date of Discharge: 19930709

 Length of Service (years, months, days):

 Active: 02 10 03 (Excludes lost time)
          Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 2 days
         Confinement:              None

 Age at Entry: 17 (Parental Consent (guardian))

 Years Contracted: 4

 Education Level: 12                                 AFQT: 81

 Highest Rank: LCpl                                  MOS: 0844

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.1 (7)              Conduct: 3.7 (7)

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


Character, Narrative Reason, and Authority of Discharge (at time of issuance):
UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct-Pattern of misconduct (administrative discharge board required but waived), authority: MARCORSEPMAN Par. 6210.3.

 Chronological Listing of Significant Service Events :

900215:  Enlistment waiver granted.

910222:  Applicant to unauthorized absence at 1700 on 910222.

910224:  Applicant from unauthorized absence at 2200 on 910224 (2 days/surrendered).

910226:  Counseling: Advised of deficiencies in performance and conduct (Unauthorized absence from the appointed place of duty and any other infractions of the UCMJ.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

910227:  NJP for violation of UCMJ, Article 86: UA (AWOL) fr 1700, 910222 to 2200, 910224.
         Award: Forfeiture of $197 per month for 1 month, restriction and extra duty for 14 days. Not appealed.

920409:  Acknowledged understanding of eligibility but not recommended for promotion to Cpl for the month of May because of making UA phone calls from a military phone. Applicant chose not to make a statement.

920420:  Counseling: Advised of deficiencies in performance and conduct (Displayed a lack of maturity and responsibility by using Government phones for long distance personal use.), necessary corrective actions explained, sources of assistance provided.

920619:  Counseling: Advised of deficiencies in performance and conduct (Negligent indecent exposure - standing in the doorway of room 211, bldg #1656 naked.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

921029:  Acknowledged understanding of eligibility but not recommended for promotion to Cpl for the month of October because of a lack of initiative and poor judgment. Applicant chose not to make a statement.

921224:  Acknowledged understanding of eligibility but not recommended for promotion to Cpl for the month of December due to poor performance during battery PT events and failure to meet financial responsibilities Applicant chose to make a statement.

930112:  NJP for violation of UCMJ, Article 92: In that LCpl Z_ T. P_ (Applicant), having knowledge of a lawful order issued by Battalion Commander, to wit: Bn Order 5500.28 dtd 5 Sep 91, an order which it was his duty to obey, did on board KMCAS, Bldg 1656, on or about 2145, 930102, fail to obey the same by having two females in room 123.
 Violation of UCMJ, Article 107: In that LCpl Z_ T. P_ (Applicant), did, on board KMCAS, Bldg 1656, on or about 2145, 930102, with intent to deceive, SSgt A_, by replying “No.” when asked if there were any women in his room, was totally false, and was then known by the said LCpl P_ (Applicant) to be so false.
          Award: Forfeiture of $233 per month for 1 month, restriction and extra duty for 14 days. Forfeiture of $80 for 1 month suspended for 6 months. Not appealed.

930112:  Counseling: Advised of deficiencies in performance and conduct (Violation of Art 92 and 107 of UCMJ. In that on 930102 had female guests in an unauthorized area (BEQ room) and made a false statement to the SDNCO GySgt A_.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

930402:  Forfeiture of pay awarded at NJP on 930112 vacated.

930423:  NJP for violation of UCMJ, Article 86: In that LCpl P_, Z_ T. (Applicant) USMC, on active duty, did, on board Pohakuloa Training Area, on or about 1100, 930313, to 1830, 930313, having knowledge not to leave base camp without authorization from CSSD-37, did, so, in civilian attire by civilian POV.
 Violation of UCMJ, Article 92:
Specification 1: In that LCpl P_, Z_ T. (Applicant) USMC, on active duty, did, on board Pohakuloa Training Area, on or about 1100, 930313, after receiving a lawful order not to leave base camp, did so on his own without authority.
Specification 2: In that LCpl P_, Z_ T. (Applicant) USMC, having knowledge of a lawful order issued by Regimental Commander, to wit RegtO 1700.3E dtd 900112, an order which it was his duty to obey, did, on board KMCAS, Bldg 1656, RM # 320, on or about 2121, 930307, fail to obey the same by drinking hard liquor in LCpl K_’s RM#320.
Specification 3: In that LCpl P_, Z_ T. (Applicant) USMC, having knowledge of a lawful order issued by Regimental Commander, to wit RegtO 1700.3E dtd 900112, an order whichh it was his duty to obey, did, on board KMCAS, Bldg 1656, RM#320, on or about 2121, 930307 fail to oby the same by drinking hard liquior under the legal age of 21.
Violation of UCMJ, Article 134: In that LCpl P_, Z_ T. (Applicant) USMC, on active duty, did, being indebted to MWR Rent All Center in the sum of $86.00, which amount became due and payable on or about 930216, did, on board Kaneohe Bay, MCAS, HI, dishonorably fail to pay said debt.
         Award: Reduction to PFC/E-2, forfeiture of $456 per month for 2 months, restriction and extra duty for 45 days. One month’s forfeiture suspended for 6 months. Not appealed.

930424:  Counseling: Advised of deficiencies in performance and conduct (Failure to obey orders and regulations.), necessary corrective actions explained, sources of assistance provided, and advised being processed for administrative discharge.

930524:  Applicant placed in pretrial confinement.

930527:  Applicant notified of intended recommendation for an under other than honorable conditions discharge by reason of misconduct due to a pattern of misconduct. The least favorable discharge possible was under other than honorable conditions. The factual basis for this recommendation was numerous derogatory counseling entries, and three nonjudicial punishments.

930527:  Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

930527:  Commanding Officer, 1 st Battalion, 12 th Marines, 1 st Marine Expeditionary Brigade, FMF, recommended to Commanding General, 1 st Marine Expeditionary Brigade, Applicant’s discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct. The factual basis for this recommendation was numerous derogatory counseling entries, and three nonjudicial punishments. Commanding Officer’s comments: “The respondent’s actions clearly indicate unsuitability for future military service. Therefore, I recommend that the Respondent be expeditiously discharged.”

930614:  Commanding Officer, 3d Marines, forwarded Commanding Officer, 1 st Battalion, 12 th Marines recommendation for administrative discharge recommending approval. Comments: “[Applicant] is pending a Grand Jury Investigation for allegedly committing a serious offense of sexual assault in the civilian community. He is also pending a Special Court Martial for violation of Articles 86 and 92 of the UCMJ. Based on [Applicant’s] record, he is recommended for an administrative separation from the U.S. Marine Corps with a discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.”

930616:  SJA review determined the case sufficient in law and fact.

930619:  GCMCA, Commanding General, 1 st Marine Expeditionary Brigade directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

930702:  NJP for violation of UCMJ, Article 86: In that LCpl P_, Z_ T. (Applicant) did, on board KMCAS, Bldg 1656, HI, on or about 0700, 930522, to 2145, 930522, was absent from his appointed place of duty, Battalion Commanders restriction with the DNCO.
 Violation of UCMJ, Article 92: In that PFC P_, Z_ T. (Applicant), having knowledge of a lawful order issued by Battalion Commander, did, at Bldg 1656, on board KMCAS, HI, on or about 0700, 930522 to 2145, 930522 fail to sign in for restriction at the prescribed time for Battalion Commanders restriction.
          Award: Forfeiture of $376 per month for 2 months and reduction to E-1. One month’s forfeiture suspended for 6 months.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19930709 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 records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).

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 four nonjudicial punishment proceedings for violations of Articles 86, 92, 107 and 134 of the UCMJ. The Applicant’s violations of Articles 92, 107 and 134 are considered serious offenses. The Applicant was counseled on seven occasions, including three counselings for not being recommended for promotion. 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 requests that the narrative reason for separation be changed to convenience of the government. The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, will change the reason for discharge if such a change is warranted. The Applicant was subject to four nonjudicial punishment proceedings (NJP) during his enlistment. The Applicant’s first NJP was on 19910227. The Applicant’s last NJP was on 19930702. The Applicant had an established pattern of misconduct. The Applicant’s Commanding Officer recommended the Applicant’s discharge by reason of misconduct due to a pattern of misconduct and the Separation Authority directed the Applicant’s discharge by reason of misconduct due to a pattern of misconduct. Since no other Narrative Reason for Separation could more clearly describe why the Applicant was discharged, a change would be inappropriate. Relief denied.

The Applicant contends that his discharge was undue because of his superiors’ failure to address the Applicant’s “personal problems.” While the Applicant may feel that his misconduct was the result of underlying personal problems, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service. There is no evidence in the record or in the documentation submitted by the Applicant to support the contention that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.

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. 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 a lawful order/regulation, Article 107, false official statement or Article 134, dishonorably failing to pay debt..
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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