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USMC | DRB | 2005_Marine | MD0501352
Original file (MD0501352.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. MD05-01352

Applicant’s Request
The application for discharge review was received on 20050804. 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 20060421. 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

No issues were submitted by the Applicant.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Character Reference ltr from J_ B. T_, dtd April 21, 2005
Character Reference ltr from K_ G. C_, GySgt USMC, dtd July 12, 2005.

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    19960424 – 19961215               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19961216             Date of Discharge: 19980807

 Length of Service (years, months, days):

 Active: 01 07 22
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 29 days
         Confinement:              None

 Age at Entry: 17 (Parental Consent)

 Years Contracted: 4

Education Level: 12                                 AFQT: 32

 Highest Rank: LCpl                                  MOS: 0311

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.2 (3)                                Conduct: 3.5 (3)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): Sea Service Deployment Ribbon, Rifle Marksmanship Badge


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

 Chronological Listing of Significant Service Events :
960424:  District level enlistment waiver approved.

970504:  Applicant to unauthorized absence at 1801 on 970504.

970506:  Applicant from unauthorized absence at 1805 on 970506.

970530:  NJP for violation of UCMJ, Article 86: Unauthorized absence
 Award: Forfeiture of $235.00 pay per month for 1 month, restriction and extra duty for 14 days, suspended for 6 mos. Not appealed.
970903:  Counseling: Advised of deficiencies in performance and conduct (Unsatisfactory performance, specifically failure to maintain proper military bearing, disrespect to officers and SNCO’s, having a lackadaisical attitude about the duties and responsibilities as a Marine, and refusal to train.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

970904:  Acknowledged understanding of eligibility but not recommended for promotion to LCpl for the month of Sept 1997 promotion period because of the recent page-11 dated 970903, received for an incident that took place in August. Applicant chose not to make a statement.

980116:  NJP for violation of UCMJ, Article 91:
 Specification 1: Was, on or about 980112 on board Camp Schwab, Okinawa, Japan, disrespectful towards Sgt W_ to wit: yelling obscenities to Sgt W_.
Specification 2: Did, on or about 980112 on board Camp Schwab, Okinawa, Japan, willfully disobey a direct order from Sgt W_ to wit: to lay down in his rack.
Violation of UCMJ Article 92: Did, on about 980112, on board Camp Schwab, Okinawa, Japan, disobey Marine Corps Japan Forces order 1600.1A to wit: wrongfully consuming alcohol while being under the legal drinking age.
Violation of UCMJ Article 128: Did, on or about 980112 on board Camp Schwab, Okinawa, Japan, assault PFC S_ to wit: striking him in the eye with his fist.
Violation of UCMJ Article 134: Was, on or about 980112 on board Camp Schwab, Okinawa, Japan, drunk and disorderly.
         Award: Forfeiture of $519.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-2. Not appealed.

980518:  Applicant to unauthorized absence at 0731 on 980518.

980614:  Applicant from unauthorized absence at 1515 on 980614 (27 days/surrendered).

980701:          NJP for violation of UCMJ, Article 86:
 Unauthorized absence from 0731, 980518 to 1515, 980614.
         Award: Forfeiture of $200.00 pay per month for 1 month, restriction for 60 days, reduction to E-1. Not appealed.

980722:  Applicant notified of intended recommendation for under other than honorable conditions discharge by reason of pattern of misconduct. The factual basis for this recommendation was failure to conform to the standards of the Marine Corps. On 28 May 97 [Applicant was] given Company Office Hours for being UA from the unit from 4 May 97 to 6 May 97. [Applicant was] disciplined for a second incident of UA on 19 June 98. On 3 September 97 [the Applicant was] counseled for failure to maintain proper military bearing, disrespect to officers and SNCO’s and having a lackadaisical attitude about the assign duties and responsibilities as a Marine. On 16 January 98 [Applicant was] given Battalion Office Hours for disrespect towards an NCO, two specification of disobeying an order, one specification of assault and one specification being drunk and disorderly. Applicant informed the least favorable character of service possible as under other than honorable conditions.
980722:  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.

98xxxx:  Commanding Officer, 3d Light Armored Reconnaissance Battalion, 1 st Marine Division, FMF, recommended to Commanding General, 1 st Marine Division, that the Applicant be discharged under other than honorable conditions by reason of misconduct due to pattern of misconduct. [Date unreadable]

980803:  SJA review determined the case sufficient in law and fact.

 980804:  Commanding General, 1 st 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 19980807 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 submitted no issues for consideration.

 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 a retention warning and three nonjudicial punishment proceedings for violations of Articles 86, 91, 92, 128 and 134 of the UCMJ. The Applicant’s violations of Articles 91, 92 and 128 of the UCMJ are considered serious offenses. The Applicant required a wavier to enlist and his conduct is a violation of the special consideration required to effect his enlistment. 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 following is provided for the edification of the Applicant. Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question. The Board discovered no reason why the Applicant should not be held responsible for his conduct and found no impropriety after a review of the Applicant’s case. There is no law or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving Naval service. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review. Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service and certification of non-involvement with civil authorities. As of this time, the Applicant has not provided sufficient post-service documentation for the Board to consider. Relief 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. 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 91, insubordinate conduct, Article 92, disobey a lawful order/regulation or Article 128, assault.
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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