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USMC | DRB | 2005_Marine | MD0501574
Original file (MD0501574.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. MD05-01574

Applicant’s Request
The application for discharge review was received on 20050920. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable. The Applicant requests a personal appearance hearing before the Board in the Washington, D.C. Metropolitan area. The Applicant did not designate a representative on the DD Form 293. In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 20060608. 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 and/or from an attached document/letter to the Board:

“To whom this may concern:

I J_ T_(Applicant) (Social Security number deleted) would like to address a couple of issues to help my review.

First issue is that my DD 214 form is all wrong. I was never in 2d Tnk bn 2d MarDiv. If Im a Amphibious Assault Crewman then I belong to the 2d AAV bn 2d MarDiv. My last pay grade was E-3 and now its E-1 and Finally the separation reason which is Physical condition not a disability is not grounds for an Other than Honorable discharge. I also have other evidence to prove that my career as United States Marine was destroyed do to a personal grudge Thank you for my review
Lcp.
[signed]
Lcpl J_ T_(Applicant)
Ex-Marine Corps
“2d AAV Bn 2 MarDiv”

 Documentation
In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Letter from Applicant, dtd October 14, 2005
Meritorious Mast certificate, dtd August 1, 2001
Meritorious Mast certificate, dtd December 13, 2000
Letter to Governor P_ C_, Mr. M_ J_, representative of Congressman A_ W_, dtd August 16, 2002
Pictures of white board

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    20000307 - 20000319      COG
          Active: None
Period of Service Under Review :
Date of Enlistment: 20000320             Date of Discharge: 20020610

 Length of Service (years, months, days):

 Active: 02 02 21
          Inactive: None

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

 Age at Entry: 22

 Years Contracted: 4

 Education Level: 12                                 AFQT: 41

 Highest Rank: PFC                                   MOS: 1833

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: NA*                                    Conduct: NA*

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): NDSM, RMM.

*Not Available


 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 :

010404:  Acknowledged understanding of eligibility but not recommended for promotion to LCpl for the month of May 2001 because of immaturity. Applicant chose not to make a statement.

010606:  Counseling: Advised of deficiencies in performance and conduct (On 000930 SNM joined Charlie Company 2d AA Bn. Since becoming a member of this command SNM’s personal and professional conduct have been nothing short of unsatisfactory. SNM has been counseled on numerous occasions concerning unsatisfactory appearance in uniform, lackadaisical attitude at work, the state of unhealthy living conditions in barracks room, and complete lack of Military presence. In no aspect of Marine Corp life is SNM making any effort to succeed. SNM has not been mentored and counseled, each with a higher level of intensity. After all of this SNM still shows no improvement.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

010803:  NJP for violation of UCMJ, Article 86: Failure to be at appointed place of duty. In that Private First Class J_ E. T_(Applicant), C Co, 2d AsltPhib Bn, 2d Mar Div, Camp Lejeune, NC did on or about 0530 010710, without authority, fail to go at time prescribed to his appointed place of duty, to wit: BB-270 for platoon formation, and did not arrive until 0700, 010710.
 Violation of UCMJ, Article 92: Failure to obey lawful order. In that Private First Class J_ E. T_(Applicant), C Co, 2d AsltPhib Bn, 2d Mar Div, Camp Lejeune, NC having knowledge of a lawful order not to stay out in town on a work night, on or about 0300 010718 and 0530 010719 failed to obey the same by wrongfully staying out in town.
          Award: Forfeiture of $272 per month for 1 month, restriction and extra duty for 14 days. Not appealed.

020109:  Acknowledged understanding of eligibility but not recommended for promotion to Cpl for the month of Feb because of lack of maturity. Applicant chose not to make a statement.

020116:  NJP for violation of UCMJ, Article 107: 010922 false official statement to GySft C_, to wit: saying that his girlfriend wrote bad checks and signed his name.
 Violation of UCMJ, Article 107, 010922, false official statement to First Sergeant M_, to wit: saying that his girlfriend wrote bad checks and signed his name.
Violation of UCMJ, Article 134: 010919, make and utter to New China a check for $18.71, and fail to maintain funds in the Marine Federal Credit Union to pay for his check.
Violation of UCMJ, Article 134: 010922, make and utter to New China a check for $19.00 and fail to maintain funds in the Marine Federal Credit Union to pay for his check.
         Award: Forfeiture of $304 per month for 1 month, restriction and extra duty for 14 days. Not appealed.

020207:  NJP for violation of UCMJ, Article 92: 020131, disobey a base order to wit: P5560.2K, by driving on a state drivers license.
 Violation of UCMJ, Article 92: 020131, disobey a base order to wit: P5560.2K by operating a motor vehicle with an operators permit and without a licensed driver in the vehicle.
          Award: Forfeiture of $619 per month for 2 months, restriction for 60 days, reduction to E-2. Forfeiture suspended for 6 months. Not appealed.

020208:  Counseling: Advised of deficiencies in performance and conduct (SNM received battalion level NJP on 020207, this was SNM’s third NJP in 19 months.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

 020415:  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.

020416:  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.

020415:  Commanding Officer, 2d Assault Amphibian Battalion recommended Applicant’s discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct. The factual basis for this recommendation was SNM’s numerous counseling entries. One Company level nonjudicial punishment for violation of article 86, absent without leave and violation of article 92, failure to obey lawful order. One Company level nonjudicial punishment for two violations of article 134, failure to maintain funds and two violations of article 107, false official statement. One battalion level nonjudicial punishment for two violations of article 92, failure to obey a lawful order. One Battalion level nonjudicial punishment for violation of article 92, failure to obey a lawful order. I believe that his continued presence in this command will undermine good order and discipline.

020515:  NJP for violation of UCMJ, Article 92 (2 specs): Failure to obey order or regulation. In that Private J_ E. T_(Applicant), having knowledge of a lawful order by the Battalion Commander to have no civilian visitors in the barracks rooms in BB270, an order which it was his duty to obey, did on or about 1624, 10 May 2002, failed to obey said order.
         In that Private J_ E. T_(Applicant), having knowledge of a lawful order by the Battalion Commander, failed to report to a 1100, 12 May 2002 Battalion Restriction check in, an order which it was his duty to obey, failed to do the same by wrongfully checking in at 1122, 12 May 2002
         Award: Forfeiture of $552 per month for 1 month, restriction for 60 days. Forfeiture suspended. Appealed 020515. No further information on appeal found in service record..

020531:  SJA review determined the case sufficient in law and fact.

020603:  GCMCA, Commander, 2d Marine Division, II Marine Expeditionary Force directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to pattern of misconduct.

020624:  Counseling: SNM failed to properly checkout with DPAC Separations. SNM failed to turn in a unit checkout sheet, medical, dental records, pre separations class sheets. SNM not available for signature.

020624:  Counseling: Per MCO P1900.17F Par 6312, SNM is in a UA/Absentee status and a Final Physical and a Pre-Separations Brief was unattainable. SNM not available for signature.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20020610 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 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 Applicant contends that there are errors on his DD Form 214. The Board recommended changes above to blocks 8a and 8b, duty station, and blocks 4a and 4b, rank. The Applicant’s last command was 2 nd AABn 2 nd MARDIV. The Applicant was reduced to E-2 at NJP on 020207. The DD Form 214 supplied by the Applicant lists “physical condition not a disability” as the narrative reason for separation. The service record copy correctly lists “misconduct” as the narrative reason for separation. Neither DD Form 214 was signed by the Applicant and both are annotated with “SNM not available for signature.” The service record states that the Applicant was “in a UA/Absentee status and a Final Physical and a Pre-Separations Brief was unattainable.” The Board concluded that the separating command corrected the narrative reason for separation on the DD Form 214 prior to submitting the record copy. The narrative reason for separation on the service record DD Form 214 is correctly annotated as “misconduct.” The Applicant’s pattern of misconduct provides justification for an under other than honorable conditions discharge. Relief is not warranted.

 When the service of a Marine 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. T he Applicant’s service was marred by two retention warnings, four nonjudicial punishment proceedings for violations of Articles 86 (2 specs), 92 (6 specs), 107 (2 specs), and 134 (2 specs) of the UCMJ. 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 Applicant bears the burden of establishing his issues through the presentation of substantial and credible evidence. The Applicant contends that his “career as a United States Marine was destroyed [due] to a personal grudge.” He provided as evidence a photograph of a “white board.” The evidence reviewed did not persuade the Board that the administrative separation was improper or inequitable. 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 P1900.16F), 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, Article [e.g., 86, unauthorized absence for more than 30 days].
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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