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USMC | DRB | 2005_Marine | MD0501355
Original file (MD0501355.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. MD05-01355

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 and the Narrative Reason for Separation be changed to “Parenthood/Pregnancy.” 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 20050427. 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 and reason for 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 from an attached letter to the Board:

 “Dear DRB or BCMR: The following issues are the reasons I believe my discharge should be upgraded to Honorable. If you disagree, please explain in detail why you disagree. The presumption of regularity that might normally permit you to assume that the service acted correctly in characterizing my service as less than honorable does not apply to my case because of the evidence I am submitting.

1. My average conduct and efficiency ratings/behavior and proficiency marks were pretty
good. I maintained an average of 4.4/4.3 for proficiency and conduct on a scale of 1.0
to 5.0 through out my service, until I arrived at my last command.
2. My record of NJPs indicates only isolated minor offenses. I was unable to fill out a
Family Care Plan as required, because I did not have anyone I could place my child
with, and I had a difficult time dealing with putting my child in daycare. I could not
place my child in daycare for personal reasons I have discussed with my Chaplain and a couple counselors.
3. My ability was impaired because of marital, family and child care problems. Because
my husband and I were stationed away from each other, there was a strain on our
relationship as a married couple. It was difficult for both of us to continue living apart,
and not knowing when we would see each other again. If that wasn’t enough, the
depression during my pregnancy and postpartum after the delivery of my child did not
make our situation any easier.
4. I tried to serve and wanted to, but I just couldn’t due to the stress I encountered being
away from my husband, and from my last command threatening to take my child away
if did not place him in daycare or fill out a Family Care Plan.
5. My command abused its authority when it decided to discharge me and decided to give me a bad discharge. They did all they could to make sure I did not leave the military
with an honorable, because of the decision I made for my family. In my paper work,
my command said that they had made every attempt to alleviate my problems. This
was not true. When I tried to get PCS orders for my husband and to collocate, I was
told we did not “rate” to receive overseas orders (Japan was the only place found
where we would be closest), and that the military would not accommodate us. I was
never told how to formally request PCS orders. During the same meeting my Major
even went as far as asking what I was doing married to an Air Force guy. In trying to
make me look like a bad Marine, the second endorsement from J_ F. A_, says
that he did not use “my pre-service drug waiver” in deciding my characterization of
service. He does mention he did use it to consider me for any further service. The
only big problem with that is that I did not have a pre-service drug waiver. (This I take
offense to, because I have never done, nor have I ever been tempted to do any drug in
my entire life). Another unfair advantage to my command was listed in my
administrative remarks. The one dated 28 March 2000, had a rebuttal which I typed to
go along with it. I have seen my rebuttal in my Service Record every time I have had it
in my possession, yet the copy of my Service Record on the CD ROM does not have
this rebuttal, which explains that everything except for the disrespect toward a Staff
NCO was a misunderstanding and miscommunication. In other words, it was unfair for
my command to use this without including my rebuttal. My last command used this
and my other administrative remarks (which were written because of my failure to
perform due to injuries I received during training that were not yet fully healed) to say
I did not serve honorably.
6. I had tried to apply for a hardship discharge but was unfairly told to forget it. I asked
how I could apply for a hardship discharge for pregnancy and parenthood, but was told
I would not have the option to get out. Instead of telling me that, the proper way
would have been to direct me to the paper work needed, not to deny me before any
paper work was done.
7. I had tried to apply for a compassionate reassignment but was unfairly denied. There
weren’t papers filed, and I was not directed to which papers to fill out to receive a
reassignment. I was verbally told that I can not get stationed near my husband and to
forget it.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Ltr from Applicant, undated
10 pages from Applicant’s service record
Ltr from Applicant, undated (2pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    20000424 – 20000521      COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 20000522             Date of Discharge: 20030117

 Length of Service (years, months, days):

 Active: 02 07 26
          Inactive: None

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

 Age at Entry: 22

 Years Contracted: 4

Education Level: 12                                 AFQT: 53

 Highest Rank: LCpl                                  MOS: 6042

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.3 (7)                                Conduct: 4.1 (7)

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



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 :

010326:  Counseling: Advised of deficiencies in performance and conduct (Disrespect towards a Staff NCO, lying to the Company Gunnery Sergeant on (4) different occasions, making a false accusation about physical abuse, not using the Chain of Command, and violating doctor’s orders by going out on liberty while in a No-Duty status.), necessary corrective actions explained and sources of assistance provided.

010427:  Counseling: Advised of deficiencies in performance and conduct (During training at Marine Combat Training Battalion, School Infantry, Training Command, Camp Lejeune, NC, [Applicant] had a lack of enthusiasm and motivation resulting in poor performance and attitude and failure of PFT.), necessary corrective actions explained and sources of assistance provided.

011116:  Counseling: Advised of deficiencies in performance and conduct (Inability to complete performance objectives.) and advised being processed for administrative separation.

020710:  Applicant interviewed by OIC to discuss childcare options if AA form for hardship discharge denied. [Extracted from OIC letter of 021204.]

020717:  OIC counseling: Applicant refused to fill out an application for childcare aboard base and refused to make any arrangements for childcare upon the birth of her child. Applicant indicated she would bring the baby into work. [Extracted from OIC letter of 021204.]

020725:  OIC counseling: Applicant refused to being the Family Care Packet and stated she would not fill one out ant any time. [Extracted from OIC letter of 021204.]

020926:  Counseling: Advised of deficiencies in performance and conduct (Family Plans; required to submit family care plan no later than 60 days after change of family status.), necessary corrective actions explained, sources of assistance provided.

021010:  Applicant in violation of MCO P1900.16D by refusing to submit a letter of Change in Family Status to the Commanding Officer. [Extracted from OIC letter of 021204.]
021030:  Applicant returned to work with her child. [Extracted from OIC letter of 021204.]

021101:  Counseling: Advised of deficiencies in performance and conduct (Violation of Article 92, UCMJ to wit: In that you were derelict in your duties as a Marine in a Duel Military Status, directed to make arrangements for daycare for [Applicant’s] child, which [Applicant] refused to do.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

021101:  Counseling: Advised of deficiencies in performance and conduct (Violation of Article 92, UCMJ, in that the Commanding Officer of MALS-39 gave you a direct order on 22 October 2002, not to bring your child to into work anymore. On 1 November 2002, you knowingly violated this order by bringing your child into work. Applicant’s actions clearly show blatant disregard for order and regulations.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

021104:  NJP for violation of UCMJ, Article 90:
         Specification: In that SNM having received a lawful command from LtCol P_ F. C_, her superior commissioned officer, then known by SNM to be her superior commissioned officer, to “not bring your child into work” or words to that effect, did a Marine Aviation Logistics Squadron 39, on 4 th November 2002, willfully disobey the same.
 Award: Reduction to E-2. Not appealed.

 021104:  Counseling: Advised of deficiencies in performance and conduct (Plead guilty at NJP for Violation of Article 90, UCMJ. Knowingly and willfully disobeyed a direct order from LtCol P. F. C_, Commanding Officer, to “not bring your child to work” or words to that effect.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
021105:  NJP for violation of UCMJ, Article 90:
 Specification: In that SNM having received a lawful command from LtCol P_ F. C_, her superior commissioned officer, then known by SNM to be her superior commissioned officer, to “not bring your child into work” or words to that effect, did at Marine Aviation Logistics Squadron 39, 5 November 2002, willfully disobey the same.
         Award: Restriction for 60 days, reduction to E-1. Not appealed.

021105:  Counseling: Advised of deficiencies in performance and conduct (Pleading guilty at NJP for Violation for Article 90, UCMJ. Knowing and willfully disobeyed a direct order from LtCol C_, Squadron Commanding Officer to “not bring your child to work” or words to that effect.), necessary corrective actions explained, sources of assistance provided, and advised being processed for administrative discharge action.

021203:  Applicant notified of intended recommendation for discharge by reason of misconduct; specifically, minor disciplinary infractions. Applicant informed the least favorable characterization of service possible is under other than honorable conditions
021203:  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.

021209:  Commanding Officer, Marine Aviation Logistics Squadron 39, recommended to Commanding General, 3d Marine Aircraft Wing that the Applicant be discharged under other than honorable conditions by reason of minor disciplinary infractions. Commanding Officer’s comments: “[Applicant’s] refusal to develop a family care plan for her child, coupled with her willful and deliberate refusal to avail herself of all means offered her to remedy her concerns, renders her totally unfit and unacceptable for continued service as a United States Marine. She has adopted a cynical attitude towards the Marine Corps, and rejects out-of-hand any genuine offer of leadership counsel or mentorship. She is totally lacking in moral courage, commitment, perseverance and loyalty, and as a result, her presence is an insult to those other Marines who serve honorably. Therefore, as a result of her refusal to serve as a Marine, and her deliberate disobeyance of orders to suite her personal needs at the expense of her unit, she is totally unfit for continued service, and should be departed under other than honorable conditions. A person who betrays our core values and sullies the reputation of our Corps deserves neither to wear our uniform nor reap the distinction of an honorable discharge.”

030108:  SJA review determined the case sufficient in law and fact.

030109:  Commanding General, 3d Marine Aircraft Wing advised the Commandant of the Marine Corps, 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 20030117 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).

 Issue 1. The Applicant contends that her efficiency ratings/behavior and proficiency marks were “pretty good.” 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. T he Applicant’s service was marred by disrespect to a Staff NCO, lying, false accusations and a lack of enthusiasm. The Applicant’s service is also marred by two nonjudicial punishment proceedings for violations of Article 90 of the UCMJ. The Applicant’s conduct, which forms the primary basis for determining the character of her service, reflects her willful failure to meet the requirements of her contract with the Marine Corps and falls far short of that required for an upgrade of her characterization of service. Relief is not warranted.

 Issue 2. The Applicant contends that her “record of NJPs indicates only isolated minor offenses,” and that she was unable to fill out a Family Care Plan because she “had a difficult time putting [her] child in daycare.” The Applicant’s service record indicates she was subject to nonjudicial punishment on two occasions for violations of Article 90 of the UCMJ. Violations of Article 90 are serious offenses. Further, regulations require the submission of a Family Care Plan. The Applicant’s difficulties with child care did not obviate her need to comply with regulations. Relief on this basis is unwarranted.

Issues 3-4. The Applicant contends that her ability was impaired because of marital, family and child care problems, stress and depression. The Applicant also contends that her command threatened to “take way [her] child.” While the Applicant may feel that her personal problems were the underlying cause of her misconduct, the record clearly reflects her willful misconduct and demonstrated she was unfit for further service. The evidence of record did not show that the Applicant was either not responsible for her conduct or that she should not be held accountable for her actions. Furthermore, there is no indication in the record or in the documents provided by the Applicant that her command acted improperly or inequitably. Relief denied.

Issue 5. The Applicant states, “My command abused its authority when it decided to discharge me.” A Marine may be separated when there is, in her service record book, a documented series of at least three minor disciplinary infractions, during the current enlistment, of a nature which have been or would have been appropriately disciplined under Article 15, UCMJ, nonjudicial punishment and that separation processing may not be initiated until the Marine has been counseled per paragraph 6105 of reference (A). The Applicant met the criteria for discharge by reason of misconduct due to minor disciplinary infractions. Thus, the Board found the Applicant’s issue without merit. Relief on this basis is denied.

The Applicant contends that her command did not make every attempt to alleviate her problems and that she was never instructed how to “formally request PCS orders.” There is no indication in the record or in the documentation submitted by the Applicant that the command acted improperly or inequitably during the Applicant’s enlistment in general or administrative separation processing in particular. The Applicant’s misconduct is well documented and her failure to comply with orders and regulations made her eligible for separation by reason of misconduct. Relief on this basis is not warranted.

The Applicant contends that her discharge is inequitable because the separation authority indicated that he used the Applicant’s “pre-service drug waiver” in deciding the whether or not she should be retained and that her enlistment did not require such a waiver. The Applicant also contends her discharge is inequitable because a rebuttal she submitted in response to a counseling was not included in her service record. In response to the Applicant’s issue, the separation authority stated that he did not consider the Applicant’s alleged waiver in considering the Applicant’s character of service. Thus, the Board found the Applicant’s issue without merit with respect to the Applicant’s character of service. Further, the Board found that the decision to retain or discharge the Applicant would not have been affected by the veracity of a waivered enlistment or by a rebuttal to the Applicant’s counseling in question. Relief on this basis is denied.

Issue 6. The Applicant contends that she tried to apply for a hardship discharge but was “unfairly told to forget it.” Reference (A) indicates that a Marine may request discharge by reason of dependency or hardship if the hardship is not temporary, the Marine has made every effort to remedy the situation, separation will eliminate or materially alleviate the condition and that there is no other means of alleviation reasonably available. The Applicant did not provide sufficient information to the Board to demonstrate that she properly requested discharge on the basis of hardship or that she met the criteria for discharge by reason of hardship. However, even if the Applicant could show that she met the criteria for discharge by reason of hardship, it would neither amount to a justification nor to a defense for the Applicant’s own misconduct. Relief denied.

The Applicant contends that asked how she could apply for discharge by reason pregnancy or parenthood. Under the presumption of regulatory, the Board determined there was insufficient evidence to support the Applicant’s contention that her command ignored her request for advice. Relief denied.

Issue 7. The Applicant contends that she tried to apply for a compassionate reassignment but was unfairly denied. There is no evidence in the record or in the documentation provided by the Applicant that she was unfairly denied “compassionate reassignment.” The Applicant provided no documentation to support her claim and there is no indication in the record that the Applicant ever submitted an official request. 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 P1900.16F), effective 01 September 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, Article 90, willfully disobey a superior commissioned 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 .

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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