DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW
DECISIONAL DOCUMENT


FOR OFFICIAL USE ONLY


ex-Pvt, USMC
Docket No. MD06-00071

Applicant’s Request

The application for discharge review was received on 20051004. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to 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 20060927 . 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 and reason for discharge shall not change. The discharge shall remain Under Other Than Honorable Conditions by reason of misconduct due to a pattern of misconduct.

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PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated from an attached letter to the Board:

“To whom it may concern:

Good day sir or madam I am writing this letter as a request to upgrade my military service. I am currently attending Manchester community college in Connecticut for substance abuse counseling and require a federal clearance in order to be able to work in the prison system as a counselor. As my record indicates I complete 4 years 2 month on active duty which I enjoyed until the last 6 months of service, I was going through a time of uncertainty and this reflected in my behavior and professional career in the military, I will also include a copy of my charge’s for you to look at and base your decision the decision of an upgrade or not. I can say that I have made some mistakes and if given the opportunity to change them I would, I enjoyed every single day I was in the military and miss it greatly. I am requesting an upgrade from under other than honorable conditions to general under honorable conditions. I feel that 6 months does not depict the person you are because of stress or personal dilemmas, again I am not making any excuse for my actions. Charge I: Violation of article 92. In that charge it was state I willfully disobey a lawful order by being on restriction and going to an establishment that was not specified by the commanding officer what was not stated was that I was the duty drive on that day that I disobeyed that order to my knowledge I though that being on restriction you are not allowed to stand duty, again let me state I accept full responsibility for my action but I think that it was taken a little too far. Charge II: Violation of Article 123a
In the charges the state I willfully intended to defraud dragon city restaurant in the amount of $94.35, $12.38, $15.87 what was not state was that I showed MSgt T_ SNCOIC of S1 that the bank reversed and paid it the same day it was posted in the bank what was said to me “we don’t care we are still proceeding with this” I personally went to dragon city and ask if they received the money or not and I was told yes as for the $12.38 and $15.87 it was paid to dragon city immediately up on knowing this again I take responsibility for my action I made a mistake and I apologize to the restaurant and the Marine Corp. If my request for upgrade is granted I would like to be able to be apart of the Marine Corp reservist I still feel I have what it take to be a Marine and I would be gratified to be a Marine reservist, I also ask that a review is done of my Pro. And Cons, I feel there’re maybe some discrepancy as far as my discharge is concern.
Thank you for your time I look forward to hearing from you in the near future.

Sincerely
L_ W_ (Applicant)”
Documentation

In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:

Applicant’s Charge Sheet, dtd October 3 0, 2003 ( 3 pages)
Applicant’s Record of Service, dtd April 20, 2005
Applicant’s DD Form 214 (Member 4)
Applicant’s DD Form 214 (Member 1)
Ltr from Applicant, undated , not signed

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PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

         Inactive: USMCR (DEP)    19990319 – 19991109      COG
         Active: None

Period of Service Under Review :

Date of Enlistment: 19991110             Date of Discharge: 20040110

Length of Service (years, months, days):

Active: 04 02 00 (Does not ex clude lost time.)
         Inactive: None

Time Lost During This Period (days):

         Unauthorized absence: 23 days
         Confinement:              None

Age at Entry: 18

Years Contracted: 4

Education Level: 12                                 AFQT: 40

Highest Rank: LCpl                                  MOS: 6672

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency: 4.0(10) *                               Conduct: 3.8(10) *

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

* Extracted from Marine Online Record of Service, dtd April 20, 2005, submitted by Applicant

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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 :

010723:  Squadron NJP for violation of UCMJ, Article 92 & 111:
         Specification: Specifically, on or about 30 June 01, SNM left the confines of MCAS Iwakuni w/o a liberty buddy and drove a vehicle w/o a SOFA license being unfamiliar with the laws, style of driving, traffic signals and road signs which lead to a traffic accident.
Award: Forfeiture of $584.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-2. Not appealed.

010910:  Counseling: Advised of deficiencies in performance and conduct (On or about 010627 you we r e directed to be at AISD at 0615 to run your PFT. After being directed by three different Marines (two (2) SNCO’s and one (1) NCO) a day prior, you still failed to show up .) N ecessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

030108:  NJP for violation of UCMJ, Article 86 (3 Specs):
         Specification 1: In that LCpl W_ (Applicant), did, on or about 0630, 2 Dec 2002, without authority, absent himself from his appointed place of duty at which he was required to be, to wit: ATFP Command and Control, located in the MAG-49, Det B barracks enclave, and did remain so absent until on or about 0645, 2 Dec 2002.
         Specification 2: In that LCpl W_ (Applicant), did, on or about 0630, 5 Dec 2002, without authority, absent himself from his appointed place of duty at which he was required to be, to wit: ATFP Command and Control, located in the MAG-49, Det B barracks enclave, and did remain so absent until on or about 0645, 5 Dec 2002.
         Specification 3: In that LCpl W_ (Applicant), did, on or about 0630, 5 Dec 2002, without authority, absent himself from his appointed place of duty at which he was required to be, to wit: ATFP Command and Control, located in the MAG-49, Det B barracks enclave, and did remain so absent until on or about 0645, 5 Dec 2002. ( Duplicate )
Violation of UCMJ Article 92 (2 Specs):
Specification 1: In that LCpl W_ (Applicant), having knowledge of a lawful order issued by the Commanding Officer, MAG-49, Det B, to obey the rules and regulations of the ATFP checkpoint procedures, an order which it was his duty to obey, did on or about 13 Dec 2002, fail to obey the same by driving through the barracks checkpoint without identifying himself.
Specification 2: In that LCpl W_ (Applicant), having knowledge of a lawful order issued by SSgt M_, to pay rent and take care of a bounced check, an order which it was his duty to obey, did on or about 10 Dec 2002, fail to obey the same by refusing to pay his rent.
Violation of UCMJ Article 113 (2 Specs):
Specification 1: In that LCpl W_ (Applicant), on or about 30 Nov 2002, while posted as a sentinel with the ATFP team, was found sleeping on his post.
Specification 2: In that LCpl W_ (Applicant), on or about 06 Dec 2002, while posted as a sentinel with the ATFP team, was found sleeping on his post.
Violation of UCMJ Article 123a:
Specification: In that LCpl W_ (Applicant), did, on or about 10 Dec 2002, with intent to defraud, wrongfully and unlawfully deliver a certain check, then knowing that the drawer thereof, did not or would not have sufficient funds in or credit with such bank for the payment of the said check in full upon its presentment.
Violation of UCMJ Article 134: In that LCpl W_ (Applicant), did, being indebted to his landlord for his rent, dishonorably fail to pay said debt.
         Award: Forfeiture of $764.00 pay per month for 2 months (suspended for 6 months), extra duty for 45 days, reduction to E-2 (suspended for 6 months). Not appealed.

030213:  Forfeiture of pay and reduction in pay grade awarded at NJP on 030108 vacated due to continued misconduct.

030516:  NJP for violation of UCMJ, Article 86 (2 Specs):
         Specification 1: In that PFC W_ (Applicant), did, on or about 0725, 1 3 Feb 03 without authority absent himself from his appointed place of duty at which he was required to be, to wit: MAG-49, Det B, Supply warehouse, and did so remain absent until on or about 0820, 13 February 03.
         Specification 2: In that PFC W_ (Applicant), did, on or about 0600, 23 April 03 without authority absent himself from his appointed place of duty at which he was required to be, to wit: MAG-49, Det B, Aviation Supply Department PT formation , and did so remain absent until on or about 0900, 23 April 03.
Violation of UCMJ Article 91 (2 Specs):
Specification 1: In that PFC W_ (Applicant), on or about 06 February 2003, was disrespectful in language toward Sgt K_ a noncommissioned officer, then known by the said Marine to be a noncommissioned officer, who was th e n in the execution of his office, by saying to him “f--- this s---, I don’t have to listen to this” or words to that effect.
Specification 2: In that PFC W_ (Applicant), on or about 0 7 February 2003, was disrespectful in language toward Sgt K_ a noncommissioned officer, then known by the said Marine to be a noncommissioned officer, who was th e n in the execution of his office, by saying to him “what the f--- I don’t work for you” and “f--- this s---, punk-a-- mother f-----” or words to that effect.
Violation of UCMJ Article 92 (3 Specs):
Specification 1: In that PFC W_ (Applicant), having knowledge of a lawful order issued by Sgt K_, to call his work section, on or about 5 February 2003, fail to obey the same by neglecting to call.
Specification 2: In that PFC W_ (Applicant), having knowledge of a lawful order issued by Sgt K_, to call his work section, on or about 6 February 2003, fail to obey the same by neglecting to call.
Specification 3: In that PFC W_ (Applicant), did on or about 15 April 2003, in the enclave area near the Enlisted Club at the Yankee 4 Post physically control a vehicle, to wit: a passenger car in a reckless manner by failing to slow down for the posted sentry, Pvt S_ causing him to step aside to avoid being struck.
         Award: Restriction and extra duty for 45 days, reduction to E-1. Not appealed.

031030:  Charges preferred against Applicant:
Charge I: Violation of the UCMJ, Article 92,
Specification 1: In that Private L_ H. W_(Applicant), U.S. Marine Corps Reserve, Marine Aircraft Group 49 Det B, 4th Marine Aircraft Wing, Marine Forces Reserve, Newburgh, New York, on active duty having knowledge of a lawful order issued by Lieutenant Colonel C. H. B_, Commanding Officer, Marine Aircraft Group 49, Det B, to wit: Commanding Officer, Marine Aircraft Group 49, Det B Letter 5800, S-I, Dated 16 May 03 which states, “You are authorized to go to eating establishments only, any other establishment is prohibited.”, or words to that effect, an order which it was his duty to obey, did at New Windsor NY, or in the surrounding community, on or about 18 May 2003 fail to obey the same by wrongfully going to Blockbuster Video.
Specification 2: In that Private L_ H. W_(Applicant), U.S. Marine Corps Reserve, Marine Aircraft Group 49 Det B, 4th Marine Aircraft Wing, Marine Forces Reserve, Newburgh, New York, on active duty having knowledge of a lawful order issued by Lieutenant Colonel C. H. B_, Commanding Officer, Marine Aircraft Group 49, Det B, to wit: Commanding Officer, Marine Aircraft Group 49, Det B Letter 5800, S-I, Dated 16 May 03 which states, “You will sign in with the Duty Non Commissioned Officer (DNCO), in the uniform of the day as indicated by the times on your restriction papers,” or words to that effect, an order which it was his duty to obey, did at New Windsor NY, or in the surrounding community, on or about 06 June 2003 fail to obey the same by wrongfully failing to sign in with the DNCO at 2145 hours.
Specification 3: In that Private L_ H. W_(Applicant), U.S. Marine Corps Reserve, Marine Aircraft Group 49 Det B, 4th Marine Aircraft Wing, Marine Forces Reserve, Newburgh, New York, on active duty having knowledge of a lawful order issued by Lieutenant Colonel C. H. B_, Commanding Officer, Marine Aircraft Group 49, Det B, to wit: Commanding Officer, Marine Aircraft Group 49, Del B Letter, 5800, S-I Dated 16 May 03 which states, “You will sign in with the Duty Non Commissioned Officer(DNCO), in the uniform of the day as indicated by the times on your restriction papers.”, or words to that effect, an order which it was his duty to obey, did at New Windsor NY, or in the surrounding community, on or about 08 June 2003 fail to obey the same by wrongfully failing to sign in with the DNCO at 1800 hours and 2000 hours.
Charge II: Violation of the UCMJ, Article 123a
Specification 1: In that Private L_ H. W_(Applicant), U.S. Marine Corps Reserve, Marine Aircraft Group 49 Det B, 4th Marine Aircraft Wing, Marine Forces Reserve, Newburgh, New York, on active duty, did, at New Windsor, NY, or in the surrounding community, on or about 8 May 2003, with intent to defraud and for the procurement of lawful currency or an article of value, wrongfully and unlawfully make and utter certain checks upon the M & T Bank in words and figures as follows, to wit: Check# 324, Date 8 May 2003, Amount $94.35, Payee Dragon City Restaurant, Payor M & T Bank, then knowing that he, the maker thereof, did not or would not have sufficient funds in or credit with such Bank for the payment of the said checks in full upon their presentment.
Specification 2: In that Private L_ H. W_(Applicant), U.S. Marine Corps Reserve, Marine Aircraft Group 49 Det B, 4th Marine Aircraft Wing, Marine Forces Reserve, Newburgh, New York, on active duty, did, at New Windsor, NY, or in the surrounding community, on or about 9 May 2003, with intent to defraud and for the procurement of lawful currency or an article of value, wrongfully and unlawfully make and utter certain checks upon the M & T Bank in words and figures as follows, to wit: Check# 335, Date 9 May 2003, Amount $12.38, Payee Dragon City Restaurant, Payor M & T Bank, then knowing that he, the maker thereof, did not or would not have sufficient funds in or credit with such Bank for the payment of the said checks in full upon their presentment.
Specification 3: In that Private L_ H. W_(Applicant), U.S. Marine Corps Reserve, Marine Aircraft Group 49 Det B, 4th Marine Aircraft Wing, Marine Forces Reserve, Newburgh, New York, on active duty, did, at New Windsor, NY, or in the surrounding community, on or about 10 May with intent to defraud and for the procurement of lawful currency or an article of value, wrongfully and unlawfully make (sic) Check# 336, Date 10 May 2003, Amount $15.87, Payee Dragon City Restaurant, Payor M & T Bank, then knowing that he, the maker thereof, did not or would not have sufficient funds in or credit with such Bank for the payment of the said checks in full upon their presentment.
Charge III: Violation of the UCMJ, Article 134
Specification I: In that: In that Private L_ H. W_(Applicant), U.S. Marine Corps Reserve, Marine Aircraft Group 49 Det B, 4th Marine Aircraft Wing, Marine Forces Reserve, Newburgh, New York, on active duty, did, at New Windsor, NY, or in the surrounding community on or about 8 May 2003, make and utter to Dragon City Restaurant a certain check, in words and figures as follows, to wit: Check# 324, Date 8 May 2003, Amount $94.35, Payee Dragon City Restaurant, Payor M & T Bank, for the purchase of Food and Beverages and did thereafter dishonorably fail to maintain sufficient funds in the M & T Bank for payment of such check in full upon its presentment for payment.
Specification 2: In that: In that Private L_ H. W_(Applicant), U.S. Marine Corps Reserve, Marine Aircraft Group 49 Del B, 4th Marine Aircraft Wing, Marine Forces Reserve, Newburgh, New York, on active duty, did, at New Windsor, NY, or in the surrounding community on or about 9 May 2003, make and utter to Dragon City Restaurant a certain check, in words and figures as follows, to wit: Check# 324 (sic), Date 9 May 2003, Amount $12.38, Payee Dragon City Restaurant, Payor M & T Bank, for the purchase of Food and Beverages and did thereafter dishonorably fail to maintain sufficient funds in the M & T Bank for payment of such check in full upon its presentment for payment.
Specification 3: In that: In that Private L_ H. W_(Applicant), U.S. Marine Corps Reserve, Marine Aircraft Group 49 Det B, 4th Marine Aircraft Wing, Marine Forces Reserve, Newburgh, New York, on active duty, did, at New Windsor, NY, or in the surrounding community on or about 10 May 2003, make and utter to Dragon City Restaurant a certain check, in words and figures as follows, to wit: Check# 324 (sic), Date 10 May 2003, Amount $15.87, Payee Dragon City Restaurant, Payor M & T Bank, for the purchase of Food and Beverages and did thereafter dishonorably fail to maintain sufficient funds in the M & T Bank for payment of such check in full upon its presentment for payment.
         [Extracted from Applicant’s Charge Sheet, dtd October 30, 2003]

040109:  GCMCA, Commanding General, Headquarters, Fourth Marine Aircraft Wing, directs the discharge and notifies the Commandant of the Marine Corps (MMSB-20), that the Applicant was discharged under other than honorable conditions by reason of misconduct.

Service Record Book contains a partial Administrative Discharge package.
Service Record was missing elements of the Summary of Service.

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PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20040110 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 presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package . In particular, the Board presumed regularity regarding the fact that the Applicant’s administrative discharge date was 2 months past the end of his 4-year contractual date (EAS) . T he Board noted formal charges had been preferred against the Applicant prior to his EAS, which is a basis for holding a Marine beyond the normal EAS. The Board presumed that Applicant’s subsequent administrative discharge was in accordance with applicable regulations (D and E).

The Board construed Applicant’s statement that he felt “6 months does not depict the person you are because stress or personal dilemmas ” to be a claim that his dis c harge was not warranted based on his overall service record. When the service of a member of the U.S. Marine Corps 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, a vacated suspended punishment, and 3 nonjudicial punishment proceedings for violations of Articles 86, 91, 92, 111, 123a, and 134 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 U.S. Marine Corps and falls far short of that required for an upgrade of his characterization of service. The NDRB advises the Applicant that certain serious offenses warrant separation from the Navy in order to maintain proper order and discipline. Violations of Article 91, 92, 111, 123a and 134 are considered serious offenses and a punitive discharge is authorized if adjudged at a special or general court-martial. Relief is not warranted.

The Applicant contends his disciplinary problems were the result of stress caused by unspecified personal dilemmas. The NDRB recognizes that serving in the U.S. Marine Corps is challenging. Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country. It must be noted that most members of the Marine Corps serve honorably and therefore earn their honorable discharges. In fairness to those members of the Marine Corps, commanders and separation authorities are tasked to ensure that undeserving Marines receive no higher characterization than is due. The NDRB found that the Applicant's service was equitably characterized. Relief denied.

The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.

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 . 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 .

D . 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 .

E . Paragraph 1008 , RETENTION BEYOND DATE DUE FOR SEPARATION , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 01 Sep 2001 until Present.

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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