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USMC | DRB | 2006_Marine | MD0600129
Original file (MD0600129.rtf) Auto-classification: Denied


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
 DISCHARGE REVIEW
DECISIONAL DOCUMENT
FOR OFFICIAL USE ONLY

ex-PFC, USMC
Docket No. MD06-00129

Applicant’s Request
The application for discharge review was received on 20051017. 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 designated a civilian counsel as the representative on the DD Form 293.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 20060824 . 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:

“Servicemember unknowingly waived his rights to counsel and to an Administrative
Separation Board. The OTH was unsupported by the facts and did not involve any of the factors listed in the Marine Corps Separation Manual. The OTH was inequitable because servicemember’s mistakes were not so egregious as to warrant the foreclosure of civilian employment opportunities for the rest of his life.”
Documentation
In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:
Attorney’s Brief , dtd October 4, 2005 (6 pages)
Two pages from Applicant’s service record
 Character Reference ltr from B_ S. A_, Chief Engineer, W _ P _ I & II, dtd June 21, 2005
 Documents concerning Applicant’s pre-service education (19 pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    19990430 - 19990510      COG
          Active: None

 Period of Service Under Review :
Date of Enlistment: 19990511             Date of Discharge: 20030313

 Length of Service (years, months, days):

 Active: 03 10 03 (Does not exclude lost time)
          Inactive: None

 Time Lost During This Period :
         Unauthorized absence: 1 day
          Confinement:              None

Age at Entry: 20

 Years Contracted: 4

 Education Level: 12                                 AFQT: 42

 Highest Rank: Cpl                                   MOS: 0621
Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.9*                                   Conduct: 3.8*

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

*Extracted from SJA Memorandum dated February 5, 2003.


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 :

000115:  Acknowledged understanding of eligibility but not recommended for promotion to Cpl for the month of Dec 2000 because of pending page 11. Applicant chose not to make a statement.

000426:  NJP for violation of UCMJ, Article 86: At 2d LAAD BN, on 000410, at 0600, was absent from appointed place of duty, to wit: Station Rifle Range, Ammunition Issue, thereby causing himself to be dropped from the rifle range detail.
         Award: Correctional custody for 7 days. Not appealed.

000817:  Naval Hospital, MCAS Cherry Point: Impression: Possible ADD with sleep insomnia.

 000911:  Psychology Department, Naval Hospital, MCAS Cherry Point: Diagnosis: AXIS I: R/O Learning Disability NOS. AXIS II: Deferred.
010116:  Acknowledged understanding of eligibility but not recommended for promotion to Cpl for the month of February 2001 because of lack of leadership. Applicant chose not to make a statement.

020716:  NJP for violation of UCMJ, Article 91: In that SNM, Headquarters and Service Company, Combat Assault Battalion, having received a lawful order from Chief Warrant Officer J_ who told SNM not to leave base while he was in Thailand due to breaking the Liberty Curfew when he first arrived in Thailand, an order which was his duty to obey. On or about 5 June 2002 SNM willfully disobeyed the same.
         Award: Forfeiture of $354.13 per month for 1 month, restriction and extra duty for 14 days. Not appealed.

020716:  Counseling: Advised of deficiencies in performance and conduct (On 020716 subject to Company level NJP for violating article 91 of the UCMJ by breaking the Liberty Curfew order while in Thailand. This kind of behavior under minds the Marine Corps dedication to excellence and strict discipline structure.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

020805:  NJP for violation of UCMJ, Article 92: In that SNM, Headquarters and Service Company, Combat Assault Battalion, who knew his duties at barracks 3407, Camp Schwab, on or about 1530, 27 July 02, SNM was derelict in the performance of those duties in that he willfully failed to obey as it was his duty to do so.
 Violation of UCMJ, Article 107: On or about 1530, 27 July 02, SNM with intent to deceive, made a false entry in the DNCO logbook
         Award: Reduction to E-3. Not appealed.

 020805:  Counseling: Advised of deficiencies in performance and conduct (On 020805 , b attalion level NJP for violating articles 92 and 107 of the UCMJ. Art 92 was for derelict of duties while assigned at the barracks DNCO, Art 107 was for making false entry in the DNCO logbook. As a result, reduced to the rank of LCpl. This kind of behavior under minds the Marine Corps dedication to excellence and strict discipline structure.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
020805:  Counseling: Advised of deficiencies in performance and conduct (During the period of 000428 to 020805, received three separate nonjudicial punishments, which establishes a pattern of misconduct. Continued disregard to follow orders will not be tolerated.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

020831:  Acknowledged understanding of eligibility but not recommended for promotion to Cpl for the Sep 2002 promotion period due to NJP. Applicant chose not to make a statement.

020930:  Acknowledged understanding of eligibility but not recommended for promotion to Cpl for the Oct 2002 promotion period due to NJP. Applicant chose not to make a statement.

 021211:  Applicant to unauthorized absence 1630, 021211.

 021212:  Applicant from unauthorized absence 1730, 021212.
021230:  NJP for violation of UCMJ, Article 86: On or about 1630, 11 December 02, SNM was UA from his appointed place of duty by not returning to Camp Schwab which he was directed to do after completing Drivers Improvement Course. SNM was UA until 1730, 12 Dec 02.
 Violation of UCMJ, Article 92: On or about 11 December 2002, SNM disobeyed Company Order to Wit: 1060.1B (failed to sign out of Liberty Logbook ).
          Award: Forfeiture of $619 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2. Not appealed.
030130:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct. Applicant informed : 1.) The least favorable characterization of service possible was under other than honorable conditions. 2.) “ You have the right to consult with qualified counsel prior to electing or waiving your rights. It is in your best interest to do so prior to waiving any of your rights.” 3.) “You are directed to respond in writing to this notice no later than two complete working days from receipt of this notification by completing enclosures (1) [ Purpose and Scope of the NDRB and BCNR ] and (2) [ Acknowledgement of Respondent’s Rights ]. ”

030130:  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.

 030130:  Commanding Officer, Combat Assault Battalion , 3d Marine Division (-) (Rein), 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 four nonjudicial punishments: On 28 April 2000, the respondent received NJP for being UA from his appointed place of duty, which caused him to be dropped from the rifle range detail. On 16 July 2002 the respondent received NJP for disobeying a lawful order given by his Warrant Officer and for being derelict in the performance of his duties in that he willfully failed to obey a lawful order by going to the gym and left his post as the DNCO while making false statements in the DNCO logbook. The respondent was recently charged for being UA and disobeying a lawful order. By his actions and inability to respond to treatment, the respondent has demonstrated that he has no potential for further military service.

030205:  SJA review determined the case sufficient in law and fact.

030210:  GCMCA, Commanding General, 3d Marine Division , directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

 030304 :  Applicant found physically qualified for separation.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030313 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).

The Applicant contends, “The OTH was unsupported by the facts and did not involve any of the factors listed in the Marine Corps Separation Manual.” The Applicant’s Attorney’s Brief , included as a supporting document, further contends that the Applicant’s actions did not adhere to Marine Corps Separations Manual Section 1004 (General C onsiderations for Characterizing Service) for an under other than honorable conditions discharge . The Applicant’s issue s are without merit. Paragr aph 1004.3c of the Marine Corps Separation and Retirement Manual indicates that an under other than honorable conditions discharge may be issued when the reason for separation is based on behavior that constitutes a significant departure form the conduct expected of a Marine. The factors listed by the Applicant’s counsel in the Attorney’s Brief are examples of conduct that may be considered, but is not an exhaustive list of factors that can be considered . Section 1004 also indicates that most Marines serve honorably and well and therefore earn honorable discharges and that, in fairness to those Marines, undeserving Marines should receive no higher characterization than is due. The Applicant’s service was marred by three retention warnings and four nonjudicial punishment proceedings for violations of Articles 86, 91, 92 and 107 of the UCMJ. The Applicant’s violations of Articles 91, 92 and 107 of the UCMJ are serious offenses for which punitive discharges are authorized if adjudged as part of the sentence upon conviction by a special or general court martial. The Applicant’s conduct, a significant departure from the conduct expected of a Marine, forms the primary basis for determining the character of his service. Therefore, the Board determined the Applicant’s character of service proper and equitable. Relief is not warranted.

The Applicant contends that he “unknowingly waived his rights to counsel and to an Administrative Separation Board.” The Applicant’s Attorney’s Brief further indicates that the Applicant’s Rights Form was poorly worded in that the form documents whether the Applicant has or has not consulted with counsel, not whether the Applicant wants to consult with counsel. On 20030130, the Applicant was notified of this Commanding Officer’s intention to recommend his separation under other than honorable conditions by reason of pattern of misconduct. In that notification, the Applicant was informed that he had the right to consult with counsel and that it was in his best intere st to do so before waiving any r ights. The same notification indicated that the Applicant had two working days to return the Acknowledgement of Rights form which indicates whether or not the Applicant had elected to consult with counsel. Therefore, the Board found the Applicant’s issue is without merit. Relief denied.
The Applicant contends his discharge is inequitable because his infractions were not sufficient to justify impairing f uture employment opportunities. T he Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. The Board discovered no impropriety or inequity after a review of Applicant’s case. The summary of service clearly documents that pattern of misconduct was the reason the Applicant was discharged. No other Narrative Reason for Separation could more clearly describe why the Applicant was discharged. Separation under these conditions generally results in characterization of service under other than honorable conditions. Relief denied.

Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question. The Board discovered no impropriety after a review of Applicant’s case. 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 Naval service. The NDRB 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. Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service and certification of non-involvement with civil authorities. As of this time, the Applicant has not provided sufficient post-service documentation for the Board to consider. 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 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 91, insubordinate conduct, Article 92, failure to obey order/regulation or Article 107, false official statement.

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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