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USMC | DRB | 2005_Marine | MD0501347
Original file (MD0501347.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. MD05-01347

Applicant’s Request
The application for discharge review was received on 20050808. 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 available 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 believe that my discharge was rushed and not given an opportunity. Several months after my discharge I became a diabetic and my life as a marine ended I love the corps and regret the outcome.”
Documentation
Only the service record book and medical record 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)    19881229 – 19890816               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19890817             Date of Discharge: 19910816

 Length of Service (years, months, days):

 Active: 02 00 00 (Does not exclude lost time.)
          Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 19 days
         Confinement:              none

 Age at Entry: 18

Years Contracted: 6

Education Level: 12                                 AFQT: 74

 Highest Rank: LCpl                                  MOS: 2542

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.8 (6)                       Conduct: 3.7 (6)

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


Character, Narrative Reason, and Authority of Discharge (at time of issuance):
UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct-Minor disciplinary infractions (with administrative discharge board), authority: MARCORSEPMAN Par. 6210.2.

 Chronological Listing of Significant Service Events :

900424:  Counseling: Advised of deficiencies in performance and conduct (Failure to obey BN Order 5370.1b to wit: The sexually harassment of woman marines and communicating alleged threats of sexual overtones.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

901004:  Counseling: Advised eligible but not recommended for promotion to Cpl because of pending charges for disobedience and disrespect. Applicant chose not to make a statement.

901012:  Counseling: Advised of deficiencies in performance and conduct (Failure to follow rules set forth in delivering message traffic and unacceptable conduct towards senior marines.), necessary corrective actions explained and sources of assistance provided.

910305:  Counseling: Advised of deficiencies in performance and conduct (Failure to return from annual leave on time.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

910305:  Counseling: Advised of deficiencies in performance and conduct (Failure to maintain sufficient funds in checking account to cover checks written.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

910305:  NJP for violation of UCMJ, Article 86: UA (AWOL) from 0859, 910106 to 0715, 910125.
 Award: Forfeiture of $250 per month for 2 months (suspended for 6 months), restriction and extra duty for 45 days. Not appealed.
910606:  NJP for violation of UCMJ, Article 91: Disrespectful in deportment toward Sgt C_, when asked to identify LCpl H_ by stating, “I don’t know nothing, and I’m not telling you anything. S_, you ask him his name yourself,“ or words to that effect.
 Violation of UCMJ, Article 92: Disobeyed a lawful order issued by Sgt C_ to give LCpl H_’s name and work section.
Violation of UCMJ, Article 109: Recklessly damage a cigarette vending machine, by rocking it until the front glass cover broke.
         Award: Forfeiture of $300 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2. Not appealed.

910628:  NJP imposed and suspended on 910305 for a period of 6 months is hereby vacated and the punishment is ordered executed.

910806:  SJA review determined the case sufficient in law and fact.

910809:  GCMCA, Commanding General, Marine Corps Base, Camp S. D. Butler directed the Applicant's discharge under other than honorable conditions by reason of based on a series of minor disciplinary infractions per paragraph 6120.2 of reference (a).


Service Record Book contains a partial Administrative Discharge package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19910816 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 available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D). The Board presumed regularity in the conduct of governmental affairs (E).

 The Applicant desires 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:
•         Retention warning entry on 19900424 for sexual harassment of female Marines;
•         Counseling entry on 19901012 for failure to follow rules and unacceptable conduct towards senior Marines;
•         Retention warning entry on 19910305 for failure to return from annual leave;
•         Retention warning entry on 19910305 for failure to maintain sufficient funds in checking account to cover checks written;
•         Nonjudicial punishment proceedings on 19910305 for violation of UCMJ Article 86 Unauthorized absence; and
•         Nonjudicial punishment proceedings on 19910606 for violation of UCMJ Articles 91 Disrespect toward noncommissioned officer, 92 Failure to obey order, and 109 Damaging property.
 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 contends that his discharge was rushed, and he was not given an opportunity. The Applicant’s records show misconduct due to minor disciplinary infractions from 19900424 through 19910606. The Applicant was given sufficient warnings and opportunities to correct his deficiencies. To permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question. Since the Applicant’s record is missing elements of the discharge package, and the Board presumed regularity in the conduct of governmental affairs (E). When this occurs, the Applicant bears the burden of overcoming this presumption of regularity by presenting any substantial and credible evidence. The Applicant did not provide any documentary evidence to challenge the propriety or equity of the discharge. The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. Therefore, 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 P1900.16D), 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, Articles 92 Failure to obey and 109 Damaging property.
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 .

E. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs .


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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