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USMC | DRB | 2005_Marine | MD0501452
Original file (MD0501452.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. MD05-01452

Applicant’s Request
The application for discharge review was received on 20050830. 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 20060531. 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 to the Board:

“I was discharged prior to serving out my enlistment which was within a few months away. My discharge was considered early due to a pattern of miss-conduct, which was totally inaccurate. I attempted on several occasions to seek military council, but was informed by my company xo, and First Sgt that it was a waste of time. I was subjected to leaving the Marine [Corps] prior to my end of enlistment date, which were only a few short months away. The Misconduct charges was supposedly alcohol related. I was never charged with an alcohol related incident yet was punished for alcohol abuse. I was to attend several alcoholic anonymous meetings or be sent to the brig at Pearl Harbor. The number of meetings I was to attend was unattainable, thus resulting in my 30-day stay at the brig. It was a total embarrassment, and completely inappropriate scenario my leaders, i.e.; upper management personnel found much found much enjoyment in humiliating me and searching for continued ways to torment and punish me because I did not want to re enlist.”

 Applicant’s Remarks: (Taken from the DD Form 293.):

“Instances logged in my personal records show things and circumstances by which I am shown to guilty of a pattern of misconduct, however, I challenge these things and circumstances. I was court martial due to being U/A, which was a total farce. The Sgt making the charge wrote this information in the duty logbook shortly after he saw me that morning. There were several instances of wrong doing that I was punished for that were uncalled for, unfortunately, I was at the mercy of the individual that were “in charge.” I realize that I can not go back in time and do things different, furthermore, I realize that the individuals that subjected me to a blatant witch hunt will never find punishment for their crimes, however I feel that what I’m asking for is not unattainable. I earned my honorable discharge and feel that I am owed it. I served my country honorably. I was a good Marine; I had a horrible management team. I was under the leadership of individuals that found it “fun” to destroy a good marines career, by falsifying official government documents.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
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)    19900802 – 19910722               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19910723             Date of Discharge: 19950426

 Length of Service (years, months, days):

 Active: 03 09 04 (Does not include lost time.)
          Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 24 days
         Confinement:              30 days

 Age at Entry: 18

Years Contracted: 4

Education Level: 12                                 AFQT: 45

 Highest Rank: LCpl                                  MOS: 0341

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.2 (11)                      Conduct: 3.7 (11)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): Rifle Expert Badge, National Defense Service Medal, Meritorious Mast, Sea Service Deployment Ribbon (W/1*), Pistol Marksman 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 :

921215:  Counseling: Advised of deficiencies in performance and conduct (Displaying a lack of responsibility and poor judgement by performing illegal maintenance on your M203 while deployed to Camp Fuji, Japan in August of 92’.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

931028:  Counseling: Advised of deficiencies in performance and conduct (In lack of judgement and responsibility per NJP held.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

 931028:  Counseling: Advised and given opportunity to consult with a lawyer provided by the government at no cost in regard to pending NJP for violation of UCMJ, Article 92 and Article 109. Advised that he had the right to refuse NJP. Applicant chose to accept NJP and decided not to consult counsel.

931105:  NJP for violation of UCMJ, Article 92: At KMCAS, HI, at or about 2300, 27 October 93, having knowledge of ASO P5500.6b did wrongfully violate same by consuming alcoholic beverages prior to the age of 21.
 Violation of UCMJ, Article 109: At Bldg 1090 KMCAS, HI, did wrongfully damage LCPL H___’s POV damage of about $100.00 on or about 2300 27, October 93.
         Award: Forfeiture of $233.00 pay per month for 1 month (suspended for 3 months), restriction and extra duty for 14 days. Not appealed.

940118:  Counseling: Advised of deficiencies in performance and conduct (SNM was caught drinking underage.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

940803:  Counseling: Advised and given opportunity to consult with a lawyer provided by the government at no cost in regard to pending NJP for violation of UCMJ, Article 111. Advised that he had the right to refuse NJP. Applicant chose to accept NJP.

940805:  NJP for violation of UCMJ, Article 111: At MCHB Kaneohe, HI at or about 2235, 27 July 94, did wrongfully drive a motor vehicle while drunk (BAC .129%).
         Award: Forfeiture of $300.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-2 (suspended for 6 months). Not appealed.

940809:  Counseling: Advised of deficiencies in performance and conduct (In the lack of judgement and responsibility per NJP held 940805.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

940829:  Applicant was seen by SACO-substance abuse counselor.

941014:  Applicant was assigned to Level II treatment program.

941028:  Applicant successfully completed Level II treatment.

941118:  NJP imposed and suspended on 940805 for a period of 6 months is hereby vacated and the punishment is ordered executed on this date.

941128:  Counseling: Advised and given opportunity to consult with a lawyer provided by the government at no cost in regard to pending NJP for violation of UCMJ, Article 86 and Article 134. Advised that he had the right to refuse NJP. Applicant chose to accept NJP.

941129:  NJP for violation of UCMJ, Article 86: In that PFC F_ (Applicant) did, on or about 0330, Nov18, 1994, without authority absent himself from his place of duty at which he was required to be, to wit: Company formation, and did remain so absent until on or about 0500 November 18, 1994.
Violation of UCMJ, Article 134: In that PFC F_ (Applicant) was, on board Marine Corps Base, Hawaii, on or about 0330, November 18, 1994, as result of wrongful previous overindulgence in intoxicating liquor, incapacitated for the proper performance of his duties.
         Award: Forfeiture of $350.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-1. Not appealed.

 950106:  Summary Court-Martial.
          Charge: violation of the UCMJ, Article 86:
         Specification: On or about 11 Dec 94
         Specification: On or about 14 Dec 94
         Finding: to Charge and the specification thereunder, guilty.
         Sentence: Forfeiture of $200.00 pay per month for 1 month, confinement for 30 days. Thirty days confinement suspended for 6 months at which time unless sooner vacated the confinement will be remitted without further action.
         CA action 950106: Sentence approved and ordered executed.

950120:  Counseling: Advised of deficiencies in performance and conduct (NJP held on 941205.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

950120:  Counseling: Advised of deficiencies in performance and conduct (Court Martial held on 950106.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

950216:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

950221:  Substance Abuse Report: Applicant was evaluated by a Medical Officer on 27 September 94 in accordance with the references as the result of a COMMAND referral.
         Results of the evaluation: Alcohol Abuse/DSM IV:305.0
950228:  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.

950228:  Commanding Officer, 3d Battalion, 3d Marines, Marine Corps Base Hawaii, recommended to Commanding General, Marine Corps Base Hawaii, that the Applicant be discharged under other than honorable conditions by reason of misconduct due to a pattern of misconduct. The factual basis for this recommendation was the respondent’s numerous derogatory counseling entries, three nonjudicial punishments, and a summary count-martial conviction.

950403:  SJA review determined the case sufficient in law and fact.

950406:  Commanding General, Marine Corps Base Hawaii, advised the Commandant of the Marine Corps (MMSB-20) that the Applicant will be discharged 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 19950426 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).

When a Marine’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions. Characterization of service as 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. The Applicant’s service was marred by 4 retention warnings, the award of nonjudicial punishment (NJP) on 3 occasions for violations of Articles 92, 109, 111, 86, and 134 of the UCMJ, and Summary Court Martial for violations of Article 86 (2 specs) of the UCMJ. The Applicant’s conduct, which forms the primary basis for determining the character of his service, fall below that required for an honorable characterization of service. An upgrade to honorable would be inappropriate. Relief is therefore denied.

The Applicant alleges impropriety in that “upper management personnel found much enjoyment in humiliating me and searching for continued ways to torment and punish me because I did not want to reenlist.” He also alleges that his leadership was guilty of “falsifying official documents.” The Applicant bears the burden of establishing his issues through the presentation of substantial and credible evidence. There is no evidence in the record, nor has the Applicant produced any evidence, that the discharge was not proper and equitable. Further, the Applicant contends that he “attempted on several occasions to seek military council, but was informed by my company XO, and First Sgt that it was a waste of time.” The record shows that the Applicant was offered the opportunity to consult with counsel, and waived that right, on the following occasions: 931028, 940803, 941128, and 950228. Relief is not warranted.

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 any claims of post-service accomplishments or any additional evidence related to this 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, Articles 92, 109, and 111.
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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