Search Decisions

Decision Text

USMC | DRB | 2006_Marine | MD0600025
Original file (MD0600025.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. MD06-00025

Applicant’s Request
The application for discharge review was received on 20050928. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable or general (under honorable conditions). 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 20060915 . 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 o f 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:

 “On or around the month of May 2001 my actions were dishonorable. I walk out on my superior officer. At that time the only thing going threw my head was, Why is she telling me that my wife who was not in the military has to quit her job. To me that was an insult. Yes at the time I had to leave early to get the kid’s to school and be there to pick the kid’s up after school. I did explained that this would need to happen for two weeks. I did use the chain of command to get permission. I also explained that I was in fact on the daycare waiting list and would not be placed until two weeks. Which bring me to the event of walking out on my superior officer after getting permission I was called in after two day’s and told to tell my wife she has no choice but to quit her job. The issue with my 1 st Sgt, was do to the 1 st Sgt Disrespecting me and my family. He had said that I don’t support my family and don’t make the right discussions . Now with me being N.J.P.ed and non ranked and pay decreased for 3 months. I still was able to put a roof over there heads, cloths on there back, and f ood on the table, so how am I not supporting my family. The 1 st SGt found out I had a second job after my duties where done with the military so I was non ranked again N.J.Ped and more money taken and put on haven to stay in the barracks for 30 day. This ending my 2 nd job and taken out of the house that I sh ared with my family. My action were dishonorable but so was the company’s actions to put my family down and try and drive us apart. I ask what would you do if you where in my situation.
 Sept 01, 2005 W_ M_(Applicant) Jr.

 To Whom It May Concern:

I am writing to you today to ask for forgiveness. On or around the month of May in 2001 I W_ M_(Applicant) Jr did in fact walk out on my superior officer and disrespect my 1 st SGT. Though I can not go back in time and change the past. Over the last four years I only wished I could change that moment. I understand at that moment the punishment which was given to me is and was correct. In the four years I have been out. I have in fact stayed out of trouble and have been working steady. I have volunteered some of my time to the M_ R. K_ Jr. Detachment here in my hometown of Fulton N.Y. to such things as help rising toys for the toys for tots program and selling raffle tickets for various fund raisers. I also would like to become a member of this organization but due to my type of discharge I received I am not able to. I also realized that people do stupid things in life and people also change. I consider myself one of those people who have changed. I went from a person who had a problem with authority and not wanting help from others to respecting authority and accepting help from others. I owe a lot of that to haven been privilege enough to experience the two and a half yeas in the armed forces as a United States Marine.
In short people who do make mistakes should be punished, but a reasonable punishment. If they can change for the better dose a life time punishment sound fair. I have changed and with my discharge being under other than honorable conditions it has stopped me from getting a lot of good things. I ask that you find it in your hearts to show forgiveness and allow my discharge be upgraded.

Thank- You

Sincerely,
[signed]
W_ E. M_(Applicant) Jr.”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (Member 1 and 4)
Letter from Mr. R_ R. E_ Sr., Past Comodont, dtd October 14, 2005

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: None
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19981118             Date of Discharge: 20010601

 Length of Service (years, months, days):

 Active: 02 06 14
          Inactive: None

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

 Age at Entry: 18

 Years Contracted: 4

 Education Level: 10 GED                    AFQT: 41

 Highest Rank: PFC                                   MOS: 3531

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.1 (8)                                Conduct: 3.7 (8)

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


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 :

981118:  Pre-service waiver for serious traffic offense granted.

991005:  NJP for violation of UCMJ, Article 91: Did on or about 0630, 24 September 1999 did treat with disrespect toward Cpl S_ by saying to him “f--- off” or words to that effect.
         Award: Forfeiture of $479 per month for 2 months, restriction and extra duty for 30 days, reduction to E-1. Forfeiture suspended for 6 months. Not appealed.

000208:  Forfeiture of pay awarded at NJP on 991005 vacated.

000225:  NJP for violation of UCMJ, Article 91: In that SNM did on or abt, 25 Jan 2000, disrespected Sgt B_ and Sgt T_.
 Violation of UCMJ, Article 92: In that SNM, did, on or abt, 25 Jan 2000, fail to obey a lawful order given by Sgt B_.
Violation of UCMJ, Article 134: In that, SNM, did, on or abt, 25 Jan 2000, communicate a threat to Sgt B_ and Sgt T_
         Award: Forfeiture of $502 per month for 2 months, restriction and extra duty for 45 days. Not appealed.

010406:  NJP for violation of UCMJ, Article 89: In that SNM did on or abt 0830, 28 March 2001, behave himself with disrespect toward 1 st Lieutenant M_ R. B_ his superior commissioned officer, then known by SNM to be his superior commissioned officer, by contemptuously turning from and leaving without being dismissed.
 Violation of UCMJ, Article 91 (3 specs)
Specification 1: In that did on or about 0830, 28 March 2001, was disrespectful in deportment toward Master Sergeant H_, a staff noncommissioned officer, then known by SNM to be staff noncommissioned officer, who was then in the execution of his office.
 Specification 2: In t h at SNM did on or about 1230, 26 March 2001, was disrespectful in deportment toward Staff Sergeant J_ J. W_, a staff noncommissioned officer, who was then in the execution of his office, to wit: by speaking disrespectfully and talking back when SNM was told to be quiet.
 Specification 3: In that SNM did on about 1300, 26 March 2001, was disrespectful in deportment toward Sergeant J_ C. R_, a noncommissioned officer, then known by SNM to be a noncommissioned officer, who was then in the execution of his office, by saying to him in regards to a haircut, “I’m not going to get one.” In continuance, when Sergeant R_ told SNM that he was unsatisfactory and undisciplined, SNM responded “So is that what you think of me? Well, I think the same way about you.”
          Award: Forfeiture of $200 per month for 2 months, correctional custody unit for 30 days, reduction to E-1. Forfeiture for 2 months and correctional custody for 15 days suspended for 6 months. Not appealed.

010416:  Counseling: Advised of deficiencies in performance and conduct (a pattern of misconduct, specifically three previous NJPs for violating articles of the UCMJ.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

010420:  NJP for violation of UCMJ, Article 86: In that SNM did on or about 0700, 17 April 2001, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: Platoon formation at 0700 building 21506.
 Violation of UCMJ, Article 91:
 Specification 1: In that SNM did on or about 1600, 17 April 2001, was disrespectful in deportment toward 1 st Sergeant A_ a staff noncommissioned officer, then known by SNM to be a staff noncommissioned officer, who was then in the execution of his office, to wit: by being loud and yelling in a belligerent manner when being counsel on his violations.
 Specification 2: In that SNM did on or about 1445, 17 April 2001, was disrespectful in deportment toward Sergeant M_ a noncommissioned officer, then known by SNM to be a noncommissioned officer, who was then in the execution of his office to wit: by being loud an belligerent and would no t do as the NCO’s had given him an order to do.
Specification 3: In that SNM did on or about 1445, 17 April 2001, was disrespectful in deportment toward Corporal C_ a noncommissioned officer, then know n by SNM to be a noncommissioned officer, who was then in the execution of his office to wit: by being loud and belligerent and would not do as the NCO’s had given him an order to do.
          Award: Restriction and extra duty for 45 days. Not appealed.

010423:  Commanding Officer, Alpha Company, 1 st Transportation Support Battalion, Camp Pendleton, CA , recommended Applicant’s discharge under other than honorable conditions by reason of pattern of misconduct. Commanding Officer’s comments: “Private M_(Applicant)’s lack of discipline and constant conflicts with those in charge of him are a norm. Private M_(Applicant) has been the subject of four NJPs, all of which dealt with disrespect. Each NJP was for multiple incidents, which ranged from disrespect to a Corporal to disrespect to a Lieutenant. He has been counseled numerous times concerning his behavior. Through it all, he has still failed to adapt to the basic requirements expected of a junior Marine. Private M_(Applicant) has neither the motivation nor willingness to accomplish the mission at hand. He has no future in the USMC or any desire to be a U.S. Marine. I strongly recommend that he be discharged in the most expeditious manner possible. ”

010507:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service as other than honorable characterization by reason of pattern of misconduct. The factual basis for this recommendation was documented state offenses, showing a continued pattern of misconduct after attempts were made to assi st in correcting deficiencies.

010507:  Applicant advised of rights and having consulted with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation and to submit a statement.

010507:  Commanding Officer, 1 st Transportation Support Battalion , recommended Applicant’s discharge under other than honorable conditions by reason of pattern of misconduct. Commanding Officer’s comments: “Private M_(Applicant) has no respect for authority. As a result, Private M_(Applicant) was found guilty at Company Commander’s Office Hours held 5 October 1999 for violation of Article 91 UCMJ. Private M_(Applicant) was awarded reduction to Private/E-1, forfeiture of $479.00 pay per month for 2 months (total forf $958.00), restriction and extra punishment duties for 30 days. Private M_(Applicant) was once again found guilty at Company Commander’s Office Hours held on 28 February 1999 for violation of Article 91, 92 and 134 UCMJ. Private M_(Applicant) was awarded forfeiture of $502.00 pay per month for 2 months (total forf $1,004.00), restriction and extra punishment duties for 45 days. Private M_(Applicant) was found guilty at Battalion Commander’s Office Hours held on 6 April 2001 for violation of Article 89, 91x3 UCMJ. Private M_(Applicant) was awarded reduction to Private/E-1, forfeiture of $200.00 pay per month for 2 months (total forf $400.00), Correctional Custody Unit for 30 days. Private M_(Applicant) was counseled on 16 April 2001 concerning his three previous NJP’s. Private M_(Applicant) once again was found guilty at Battalion Commander’s Office Hours held on 20 April 2001 for violation of Article 86, 91x3 UCMJ. Private M_(Applicant) was awarded restriction and extra punishment duties for 45 days. The seriousness of the offenses warrants administrative discharge. ”
010521:  SJA review determined the case sufficient in law and fact.

010524:  GCMCA, Commanding General, 1 st Force Service Support Group, 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 20010601 by reason of misconduct due to a pattern of misconduct (A ) 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 ( B and C).

The Applicant desires an upgrade to Honorable or General (Under Honorable Conditions). 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:
•         Non-judicial punishment proceedings on 19991005 for violation of UCMJ Article 91 Disrespect toward noncommissioned officer ;
•         Non-judicial punishment proceedings on 20000225 for violation of UCMJ Article 91 Disrespect toward noncommissioned officer, Article 92 Failure to obey order, and Article 134 Communicating threat;
•         Non-judicial punishment proceedings on 20010406 for violation of UCMJ Article 89 Disrespect toward superior commissioned officer, Article 91 (3 specifications) Disrespect toward superior noncommissioned and other noncommissioned officers;
•         Retention warning entry on 20010416 for deficiencies in performance and conduct concerning three previous NJPs for violating articles of the UCMJ ; and
•         Non-judicial punishment proceedings on 200 1 0420 for violation of UCMJ Article 86 Unauthorized absence; Article 91 (3 specifications) Disrespect toward superior noncommissioned and other noncommissioned officers.
The Applicant’s conduct, which forms the primary basis for determining the character of his service, falls well below that required for an upgrade. Relief on this basis is denied.

The Applicant contends that his discharge is inequitable because his “1st Sgt disrespect[ed] [him] and [his] family.” There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention of command misconduct. In the absence of incriminating evidence, the Board concluded that the government’s agents acted in good faith, proceeded within the bounds of the law, and conformed their behavior to appropriate standards during the Applicant’s service and subsequent administrative processing. The Board advises the Applicant that he bears the burden of establishing his issues through the presentation of substantial and credible evidence. The Applicant’s statements alone do not provide sufficient basis to grant relief. Relief on this basis is denied.

While 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 service, the Board 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. Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge. The Applicant submitted one character reference for consideration. The Applicant’s efforts need to be more encompassing to include evidence of continuing educational pursuits, verifiable employment records, documented community service, and certification of non-involvement with civil authorities. At this time, there is not sufficient documentation of post service character and conduct to mitigate the misconduct that resulted in the characterization of discharge. And so, no relief is granted on this basis.

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 P1900.16E), effective 31 Jan 97 until 31 Aug 01.

B . Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety .

C . 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

Similar Decisions

  • USMC | DRB | 2005_Marine | MD0501235

    Original file (MD0501235.rtf) Auto-classification: Denied

    The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable or general (under honorable conditions). 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. Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.

  • USMC | DRB | 2013_Marine | MD1300663

    Original file (MD1300663.rtf) Auto-classification: Denied

    While some members may be less mature than others, the NDRB does not view a member’s claim of immaturity to be a mitigating factor or a sufficient reason for misconduct.Relief denied.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and discharge process, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain .The Applicant remains eligible for a...

  • USMC | DRB | 2005_Marine | MD0500975

    Original file (MD0500975.rtf) Auto-classification: Denied

    040309: Commanding Officer of Company L, 3D Battalion, 4 th Marines, 1st Marine Division (REIN) informed Commanding Officer, 3d Battalion 4 th Marines: “Private M_ (Applicant) has consistently displayed a pattern of misconduct. Private M_ (Applicant)’s psychological issues and aversion to authority cannot be effectively managed within the operating forces.”040310: Counseling: Advised of deficiencies in performance and conduct (Regarding Private M_ (Applicant) personality disorder, lack of...

  • USMC | DRB | 2005_Marine | MD0500660

    Original file (MD0500660.rtf) Auto-classification: Denied

    MD05-00660 Applicant’s Request The application for discharge review was received on 20050302. PART I - APPLICANT’S ISSUES AND DOCUMENTATION PART II - SUMMARY OF SERVICE Prior Service (component, dates of service, type of discharge): Inactive: USMCR (DEP) 19970305 - 19970427 COG Active: USMC 19970428 - 20001003 HON Period of Service Under Review :Date of Enlistment: 20001004 Date of Discharge: 20021113 Length of Service (years, months, days):Active: 02 01 10 (Does not exclude lost...

  • USMC | DRB | 2005_Marine | MD0501424

    Original file (MD0501424.rtf) Auto-classification: Denied

    PART I - APPLICANT’S ISSUES AND DOCUMENTATION Although this Marine is being evaluated for possible personality disorder the basis for this separation request is only “eating disorder” (see 26 March medical evaluation). The basis for this recommendation is her diagnosis of severe Eating Disorder, as supported by CDR M_ (Psychiatrist) evaluations of 26 Mar 03, 3 Feb 03, 7 Jan 03, 18 Dec 02 and 16 Dec 02.

  • USMC | DRB | 2000_Marine | MD00-00997

    Original file (MD00-00997.rtf) Auto-classification: Denied

    Documentation In addition to the service record, the following additional documentation, submitted by the applicant, was considered:Copy of DD Form 214 (2 copies) PART II - SUMMARY OF SERVICE Prior Service (component, dates of service, type of discharge): Active: None Inactive: USMCR(J) 920520 - 920915 COG Period of Service Under Review :Date of Enlistment: 920916 Date of Discharge: 960411 Length of Service (years, months, days):Active: 03 06 26 (Doesn't exclude lost or confinement...

  • USMC | DRB | 2006_Marine | MD0600026

    Original file (MD0600026.rtf) Auto-classification: Denied

    The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable. PART I - APPLICANT’S ISSUES AND DOCUMENTATION It is for these reasons that I am recommending that his separation be under other than honorable conditions.

  • USMC | DRB | 2002_Marine | MD02-00863

    Original file (MD02-00863.rtf) Auto-classification: Denied

    Battery commander's comments: "In fourteen months of service with Battery E, Private P_ has established a relentless pattern of misconduct that began with unauthorized absence and has progressed to disrespect and misconduct of a sentinel. The service records that the NDRB reviewed showed that the Applicant's discharge characterization accurately reflects his service to his country and, in order for the Board to permit relief, there must be evidence of inequity, impropriety, or procedural...

  • USMC | DRB | 2005_Marine | MD0501381

    Original file (MD0501381.rtf) Auto-classification: Denied

    PART I - APPLICANT’S ISSUES AND DOCUMENTATION The infractions cited in the commanding officer’s recommendation occurred prior to corrective actions and did not warrant admin separation until my enlistment was due to expire.”Additional issues submitted by Applicant’s representative: “Issue 1: Whether applicant received a fair & impartial hearing on discharge by not having the recommendations of his superior officers, whom had direct knowledge of his military ethics & bearing, considered...

  • USMC | DRB | 2002_Marine | MD02-01270

    Original file (MD02-01270.rtf) Auto-classification: Denied

    PART II - SUMMARY OF SERVICE Prior Service (component, dates of service, type of discharge): Active: None Inactive: USMCR(J) 950223 - 950321 COG Period of Service Under Review :Date of Enlistment: 950322 Date of Discharge: 990315 Length of Service (years, months, days):Active: 03 11 24 (Excludes lost time, confinement time and appellate leave.) PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW Discussion The Applicant was discharged on 19990315 with a bad conduct discharge...