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USMC | DRB | 2005_Marine | MD0501266
Original file (MD0501266.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. MD05-01266

Applicant’s Request
The application for discharge review was received on 20050719. 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 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 a pattern of misconduct.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“I wish to return to service in the US Marine Corps.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
DD Form 149, dtd April 26, 2005
Applicant’s DD Form 214 (Member 1 and 4)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: None
         Active: None

 Period of Service Under Review :
Date of Enlistment: 20010110             Date of Discharge: 20030402

 Length of Service (years, months, days):

 Active: 02 02 23 (Does not exclude lost time.)
          Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 118 days
         Confinement:              23 days

 Age at Entry: 19

 Years Contracted: 4

 Education Level: 12                                 AFQT: 34

 Highest Rank: LCpl                                  MOS: 0341

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.4 (8)                                Conduct: 2.9 (9)

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


Character, Narrative Reason, and Authority of Discharge (at time of issuance):
UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MARCORSEPMAN Par. 6210.3.

 Chronological Listing of Significant Service Events :

010526:  Applicant to unauthorized absence 0700-1200, 010526. [Extracted from NAVMC 118(1).]

010529:  Counseling: Advised of deficiencies in performance and conduct (Unauthorized absence on 0700-1200, 010526 from appointed place of duty, to wit: School of Infantry, MCB, Camp Pendleton, CA. This kind of behavior shows lack of responsibility and maturity.) Applicant chose not to make a statement.

020206:  Applicant to unauthorized absence at 0700 on 020206.

020306:  Applicant declared a deserter.

020604:  Applicant from unauthorized absence at 0900 on 020604 (118 days/surrendered)

020629:  Summary Court Martial: Applicant found guilty of violation of UCMJ Article 86 Unauthorized absence.
         [Extracted from Commanding Officer’s letter dated 030108.]

020629:  Applicant to confinement.

020721:  Applicant released from confinement (23 days)

020722:  Counseling: Advised of deficiencies in performance and conduct (Lack of judgment and responsibility. Specifically, UA from 6 Feb 2002 until 4 June 2002. This situation could have been avoided by Applicant through proactive administrative measures. Applicant should have researched the Marine Corps order and Battalion policies as they pertain to Request Mast and annual leave. There is no problem that is solved when Applicant take matters into own hands and go UA. There are many ways to handle problem, if Applicant’s having difficulties use chain of command to help. This conduct is not in keeping with the high standards of the Marine Corps nor does it uphold the Core Values of Honor, Courage, and Commitment.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

Undated:         Acknowledged understanding of eligibility but not recommended for promotion to PFC for Aug-Dec 2002 promotion period because of being within 6 months of a summary court-martial. Not available for signature.

021002:  Battalion NJP: Violation of UCMJ Article 91 (5 Specs) Failure to obey a lawful order from three noncommissioned officers, disrespect toward a noncommissioned officer, and assault on a noncommissioned officer.
         [Extracted from Commanding Officer’s letter dated 030108.]

021003:  Counseling: Advised of deficiencies in performance and conduct (Lack of judgment and responsibility. Specifically, that Applicant disobeyed lawful orders from 3 of Applicant’s NCO’s, disrespectful to an NCO, and assaulted an NCO during the Survival Exercise at the Jungle Warfare Training Center. Applicant failed to let NCO’s know of not feeling well in the morning, if Applicant had done this then the entire situation could have been alleviated. If this had been a combat situation Applicant’s actions would have place not only self but also entire squad’s survival in jeopardy. Paragraph 6210 of MCO P1900.16 states “A Marine may be separated where there is a pattern of more serious infractions...which include two or more discreditable involvement with civil and/or military authorities or two or more instances of conduct prejudicial to good order and discipline within one enlistment.” Applicant has established a pattern of misconduct as evidenced by the summary court-martial for UA and continued disregard for military authority. This conduct is not in keeping with the high standards of the Marine Corps nor does it uphold the Core Values of Honor, Courage, and Commitment.), necessary corrective actions explained, sources of assistance provided, and advised being processed for administrative discharge action. Applicant chose not to make a statement.

021105:  Acknowledged understanding of eligibility but not recommended for promotion to PFC for the Dec02-Jan03 promotion period because of being within 3 months of NJP. Applicant chose not to make a statement.

021213:  Acknowledged understanding of eligibility but not recommended for promotion to PFC for the Dec 2002, Jan, Feb, Mar 2003 promotion period because of being within 3 months of NJP/pending administrative separation for a pattern of misconduct. Applicant chose not to make a statement.

030108:  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 a pattern of misconduct. The factual basis for this recommendation was continually violation of the UCMJ as follows: On 29 June 2002, you were found guilty at a summary court-martial for violation of article 86, UCMJ for unauthorized absence from 6 February to 4 June 2002. On 2 October 2002, you were found guilty at battalion level NJP for violation of articles 91x5 for failure to obey a lawful order from three NCOs, disrespect towards an NCO, and assaulting an NCO.
030108:  Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.

030121:  Commanding Officer, 2d Battalion, 7 th Marines recommended via Commanding Officer, 4 th Marines, Applicant’s discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct. Commanding Officer’s comments: “Private F_ (Applicant) has no redeeming qualities and does not possess the intelligence, drive, or the initiative to ever become a productive member of this Battalion. Private F_(Applicant) requires an inordinate amount of attention from his chain of command and then still fails to measure up to even the lowest acceptable standards. Private F_(Applicant) has lied and misled his chain of command on several occasions and only relates the truth when backed into a corner with inevitable discovery. Private F_(Applicant)’s chain of command recommends that he be separated from the Marine Corps. I agree with their recommendation and request that he be separated with a other than honorable characterization of service.”

030123:  Commanding Officer, (4 th Marines) recommended Applicant’s discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

030219:  GCMCA, Commanding General, 3d Marine Division directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030402 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).
The Applicant requests an upgrade to Honorable. 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:
•         Counseling entry on 20010529 for unauthorized absence;
•         Summary Court Martial conviction on 20020629 for violation of UCMJ Article 86 Unauthorized absence from 20020206 to 20020604 (118 days);
•         Retention warning entry on 20020722 for unauthorized absence;
•         Non-judicial punishment proceedings on 20021002 for violation of UCMJ Article 91 failure to obey a lawful order, disrespect toward an NCO, and assault; and
•         Counseling entry on 20021003 for lack of judgment and responsibility.
 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 desires to return to service in the U.S. Marine Corps. R egulations limit the Board’s review to a determination on the propriety and equity of the discharge. Consequently, the Board has no jurisdiction over reenlistment, reentry, or reinstatement into any of the Armed Forces. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter. 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 P1900.16F), effective 01 Sep 2001 until Present.

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, Articles 86 Unauthorized absence for more than 30 days and 91 Assaulting noncommissioned officer and Willfully disobeying noncommissioned officer.
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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