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USMC | DRB | 2005_Marine | MD0501235
Original file (MD0501235.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. MD05-01235

Applicant’s Request
The application for discharge review was received on 20050712. 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 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 20060413. 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:

“One of the main reasons for my OTH Discharge was for financial obligations. My CO thought getting me out of the Marine Corps would actually help me fulfill these obligations. I did some really stupid things when I was in. If I had it to do over again allot of things would be different. But one fact would have remained constant, The Marine Corps!
I would really like my discharge upgraded to Honorable so that I may finally purchase a house. I am about to have a family, and I am really excited. Furthermore I would also like to see about the reenlistment code being changed as well. Any help is greatly appreciated.”

 Documentation
Only the service record book and medical record were 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)    19960710 – 19970707               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19970708             Date of Discharge: 19990727

 Length of Service (years, months, days):

 Active: 02 00 20
         Inactive: None

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

 Age at Entry: 17 (Parental Consent)

Years Contracted: 4

Education Level: 12                                 AFQT: 41

 Highest Rank: LCpl                                  MOS: 2531

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.1 (4)                                Conduct: 4.0 (4)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): Certificate of commendation


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 :

980120:  Counseling: Advised of deficiencies in performance and conduct. [Uttering checks with insufficient funds.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

980203:  Counseling: Advised of deficiencies in performance and conduct. [Violation of Scolo 1050.1D. Specifically, failure to notify command of intent to visit Mexico.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

980902:  Counseling: Advised of deficiencies in performance and conduct. [Violation of Article 91 of the UCMJ; Specifically WO D_(OOD) along with Sgt M_ (PltSgt) while touring the barracks entered Applicant’s room and the Applicant sat on the couch making no effort to acknowledge his present. After WO D_ left the room, Sgt M_ questioned Applicant as to why he failed to acknowledge the Plt Cmdr. While being questioned the Applicant told Sgt M_ “I don’t appreciate you being a dick to me.”] Sources of assistance provided.

981117:  NJP for violation of UCMJ, Article 91:
 Specification: SNM on or about 980824, disrespected in language and deportment toward Cpl W_, R. C., a Non Commissioned Officer, then known by SNM to be a Non Commissioned Officer, who was then in the execution of his office by saying “I hate his stupid f---ing a--, that mother f---er”, or words to that effect.
Violation of UCMJ Article 92:
Specification: On or about 980901 SNM failed to obey a lawful order issued by the battalion surgeon, Lt R_, to wit: medical revised duty status, “stating no duty confined to bed except for mess facilities,” an order in which it was his duty to obey. SNM failed to obey the same by wrongfully going off base.
          Award: Forfeiture of $200.00 pay per month for 1 month, restriction and extra duty for 14 days. Not appealed.

990121:  Counseling: Advised of deficiencies in performance and conduct. [Violation of Article 134, paragraph 68, specifically making and uttering checks, by dishonorably failing to maintain funds. Numerous checks payable to numerous organizations without having sufficient funds in the account.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

990128:  Acknowledged understanding of eligibility but not recommended for promotion to Cpl for the first quarter because of NJP in October. Applicant chose not to make a statement.

990317:  Acknowledged understanding of eligibility but not recommended for promotion to Cpl for the month of April because of NJP/assignment to remedial PT session. Applicant chose not to make a statement.

990408:  NJP for violation of UCMJ, Article 86:
 Specification: In that SNM did, at MCAGCC, Twentynine Palms, CA, on or about 990406, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: H&S Co remedial PT session.
         Award: Restriction for 30 days, reduction to E-1. Not appealed

990503:  NJP for violation of UCMJ, Article 134 (102):
         Specification: In that SNM, having been restricted to the limits of place of duty, billet, mess and worship, by a person authorized to do so, did at MCAGCC, Twentynine Palms, CA, at or about 2200, 990410, break said restriction.
         Violation of UCMJ, Article 92:
Specification: In that SNM, having knowledge of a lawful order issued by the Provost Marshall, not to operate privately owned vehicle aboard MCAGCC, an order to which it was his duty to obey, did at MCAGCC, Twentynine Palms, CA at or about 2200, 990410, fail to obey the same by wrongfully operating a POV.
Violation of UCMJ, Article 86:
Specification: In that SNM, did on aboard MCAGCC, on or about 0700, 990428, without authority, fail to go at the time prescribed to his place of duty, to wit: SNM was told to be at MCAGCC working party by Cpl H_ at 0700 and was found in room 309 in the barracks at 0730.
         Award: Restriction for 45 days, reduction to E-1. Not appealed
990604:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service under other than honorable conditions by reason of misconduct, specifically minor disciplinary infractions. The factual basis for this recommendation was failure to confirm to the standards of the Marine Corps. Applicant’s counseling on Jan 1, 1998, for page 11 entry, for uttering bad checks with insufficient funds. Applicant’s page 11 entry on February 3, 1998, for violation of Scolo 1050.1D. Specifically, failure to notify command of intent visit to Mexico. Also counseling on September 02 1998, violation of Article 91, failure to make an effort to acknowledge WO D_ presence in the barracks. Applicant’s page 12 entry on December 3, 1998, for Violation for Article 91, disrespect in language and deportment toward Cpl W_. Also counseled on January 21, 1999, for Violation of Article 134, specifically making and uttering bad checks, dishonorable failure to maintain proper funds. On January 28, 1999 Applicant was not recommended for promotion to corporal for the month of April because NJP/assignment to remedial PT. Also page 12 entries for May 6, 1999, Violation of Article 134 did at MCAGGC, Twentynine Palms, CA break restriction. Article 92, disobeyed a lawful order, Article 86, failure to be at his appointed place of duty at 0700. Applicant’s page 12 entry on April 26, 1999, Article 86, without authority, fail to go to at the time prescribed to his appointed place of duty, to wit: H&S remedial PT session.
990604:  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.

990604:  Commanding Officer, 3d Light Armored Reconnaissance Battalion, 1 st Marine Division, recommended to Commanding General, 1 st Marine Division, that the Applicant be discharged under other than honorable conditions by reason of misconduct due to a pattern or misconduct, specifically minor disciplinary infractions. Commanding Officer’s comments: “Private W_ (Applicant) has received both informal and formal counseling on numerous occasions. Each of the formal counseling sessions are well documented in his official record. Every effort was made to attempt to improve or correct Private W_ (Applicant)’s conduct and behavior. Unfortunately, SNM continued with his misconduct resulting in numerous company and battalion office hours. Three office hours reflect numerous UCMJ offenses to include everything from disrespect, unauthorized absences, violation of orders, and the breaking of battalion restriction. As a result of this misconduct, Private W_ (Applicant) currently owes $14,000 in car repairs resulting from a March 1999 automobile accident (SNM possessed no car insurance) and $18,000 on an existing car note. With financial counseling, he has made limited progress in paying his bills due to his continued violation of the UCMJ.”

990623:  Counseling: Advised of deficiencies in performance and conduct. [Advised by the Commanding Officer 3d Light Armored Reconnaissance Battalion attends to recommend to the Commanding General 1 st Marine Division to process Applicant for a Administrative Discharge due to a Pattern of Misconduct. (980120) Pg 11 entry-Uttering checks wit insufficient funds, (980203) Violation of school order 1050.1D-Failure to notify command of intent to visit Mexico, (980902) violation Art 91-Disrespect to a NCO, (990121) 6105 entry for violation 134-Uttering checks by maintaining insufficient funds, NJP’s on (981203) Violation Article 91 disrespect to a NCO, Violation Article 92-disobeyed lawful order issued by BN surgeon, (990426) Article 86-UA from appointed place of duty, (990506) Article 134-Breaking restriction, Article 92-Violate a lawful order issued by Provost Marshall, Article 86-UA fail to go to prescribed place of duty.] Applicant chose not to make a statement.

990720:  SJA review determined the case sufficient in law and fact.

990723:  Commanding General, 1 st Marine Division (Rein), advised the Commandant of the Marine Corps (MMSB) that the Applicant will be discharged 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 19990727 by reason of misconduct due to minor disciplinary infractions (A) 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 (B and C).

 When a Marine’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions. Characterization of service as under other than honorable conditions 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. There is irrefutable evidence that the Applicant’s conduct during his time in the Marine Corps was not honorable. Indeed, the Applicant’s records contain:
•         Retention Warning entry on 19980120 for uttering checks with insufficient funds;
•         Retention Warning entry on 19980203 for failure to notify the command of intent to visit Mexico;
•         Counseling entry on 19980902 for violation of UCMJ Article 91, contempt, disrespect toward a warrant officer;
•         Nonjudicial punishment proceedings on 19981117 for violation of UCMJ Articles 91, disrespect in language and deportment toward a noncommissioned officer and 92, failure to obey a lawful order;
•         Retention warning entry on 19990121 for violation of UCMJ Article 134, making and uttering checks by dishonorably failing to maintain funds;
•         Nonjudicial punishment proceedings on 1990408 for violation of UCMJ Article 86, unauthorized absence; and
•         Nonjudicial punishment proceedings on 19990503 for violation of UCMJ Articles 86, unauthorized absence; 92, failure to obey order; and 134, breaking restriction.
 The Applicant’s conduct, which forms the primary basis for determining the character of his service, falls well below that required for an honorable characterization of service. An upgrade to honorable would be inappropriate; therefore relief is denied.

The Applicant requests an upgrade in order to purchase a house for his family. The Applicant also seeks a change in his reenlistment code. The Board recognizes the Applicant’s desire to support his family; however, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment, educational, medical, or housing opportunities. Also, since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the Board is not authorized to change a reenlistment code. Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. These issues do not serve to provide a foundation upon which the Board can grant relief. Relief on this basis is 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. The Applicant can provide documentation to support post-service accomplishments or any other evidence related to the 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 P1900.16E), effective 31 Jan 97 until 31 Aug 2001.

B. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety .

C. 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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