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USMC | DRB | 2006_Marine | MD0600136
Original file (MD0600136.rtf) Auto-classification: Denied


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

ex-LCpl, USMC
Docket No. MD06-00136

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 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 20060830 . 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:

 “I am requesting that my discharge be upgraded for numerous reasons. My time spent at 3 rd Radio Battalion was trying and exhausting to me in many ways. During that time there became a trend of weeding out certain individuals by the new Commanding Officer, for reason narcotics mostly. I believe that I became associated with them. I feel the command wanting me out, but having been counseled in late 2004, needed to provoke a means for having me justifiably separated. I have had to dodge unwarranted NJP’s, provoked by my own superiors, competency review boards, and was tasked daily, for duration of the entire workday to carry out degrading tasks. (ie, “dumpster diving, trash collecting, cleaning others’ barrack rooms) I sleeked help from Mental Health, and was given little help for resolution. Coincidentally enough, the Naval Lieutenant’s recommendation for separation was followed by an administrative separation for misconduct. With an average pro/con mark in service of 4.4/4.2, no deliberant harm to myself or others, and no drug/narcotic related incidents, I do not feel my behavior warrants an Other Than Honorable discharge. I am not entirely sure what I deserve, only grateful for the opportunity to object. I do however, miss the military, the comradely , and the ability to serve and be a part of something bigger than myself. I would very much like to be afforded that right again. I feel that I would have better served elsewhere, but I don’t want to dwell on that as much as focus on what I can contribute elsewhere. I have included in the packed a letter that conditionally waived my rights. I was prompted by legal to do so, and my adjutant brought it to the Commanding Officer’s attention. It was decided to be evidence of bullying, but after my signing another one, and NJP and Competency Review Board disappeared. They, however forgot to change the new waiver f rom conditional, to unconditional.”
Applicant’s Remarks: (Taken from the DD Form 293.) “I would also like to add that I never received any counseling or notice of the Security Access Eligibility Reports (SEAR) written on my behalf.”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Service Related Documents (33 pgs)
Applicant’s DD Form 214 (Member 1)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    20010622 – 2001072 2                COG
          Active: None

 Period of Service Under Review :
Date of Enlistment: 2001072 3              Date of Discharge: 20050325
Length of Service (years, months, days):

 Active: 03 08 01 (Does not exclude lost time.)
          Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 4 days
         Confinement:              none

 Age at Entry: 20

 Years Contracted: 5

Education Level: 12                                 AFQT: 88

 Highest Rank: LCpl                                  MOS: 2621

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4. 4 (8)                       Conduct: 4.2 (8)
Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): Global War on Terrorism Service Medal, National Defense Service Medal, Rifle Expert Badge (3 rd Awd).


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 :

020430:  Counseling: Advised of deficiencies in performance and conduct (Viol Art 121, UCMJ: to wit: on or about 0300, 020430, wrongfully take an American Flag hanging from the outside of a restaurant.), necessary corrective actions explained, sources of assistance provided, and received administrative discharge warning .
020821:  Counseling: Advised of deficiencies in performance and conduct (Viol of Art 86: Unauthorized Absence, Art 107: Falsifying a Medical Chit, and Art 134: Conduct unbecoming of a Marine (Lying to his Platoon Sergeant), necessary corrective actions explained, sources of assistance provided, and received administrative discharge warning.

021219:  Applicant referred to Abuse Counseling Center, Marine Corps Base Hawaii for screening. Director, Substance Abuse Counseling Center Screening Report: SNM [Applicant] does not meet the criteria for Alcohol Abuse or Dependency. His drinking habits appears to be nonproblematic at this ti me. Recommend SNM return to dut y, no further required.

040224:  NJP for violation of UCMJ, Article 92: Did, at MARCORDET, Corry Station, on or about 040116, wrongfully disobey a lawful order given by GySgt S_ to wit: Not to move out in town.
 Violation of UCMJ Article 107: Did, at MARCORDET, Corry Station, on or about 040112, with intent to deceive, make to Mr R_, an official statement, to wit: I have been promoted and want to respond to the sign posted, which was false and was then know by the said Cpl K_ (Applicant) to be false.
Violation of UCMJ Article 134: Did, at MARCORDET, Corry Station, on or about 040112, wrongfully and without authority wear upon his uniform the grade of sergeant.
         Award: Forfeiture of $747.00 pay per month for 2 months (suspended for 6 months), restriction for 45 days, reduction to E-3. Not appealed.

040319:  Applicant to unauthorized absence on 040319.

040408:  Forfeiture of pay awarded at NJP on 040224 vacated due to continued misconduct.

040422:  Applicant from unauthorized absence on 040422 (4 days).

 04042 6 :  NJP for violation of UCMJ, Article 86: In that LCpl K_ (Applicant), on active duty, 3 rd Radio Battalion, MCBH, did, on board MCBH, on or about 040319, without authority absent himself from his unit, to wit: 3 rd Radio Battalion, U.S. MarForPac, located at Marine Corp Base Hawaii, and did remain so absent until 040322.
 Violation of UCMJ Article 134: In that LCpl K_ (Applicant), on active duty, 3 rd Radio Battalion, having been restricted to the limits specified on LCpl K_ (Applicant’s) restriction and muster roster, by a person authorized to do so, did, on board MCBH, on or about 0705, 040328, break said restriction by failing to muster at 0700, 040328.
         Award: Forfeiture of 7 days pay for 1 month (4 days pay suspended for 6 months) , restriction and extra duty for 14 days. Not appealed.

 040504:  Counseling: Advised of deficiencies in performance and conduct (Failure to obey an order and breaking restriction. Applicant willfully disobeyed an order by Maj A_ to return directly to MCBH Kaneohe Bay, Hawaii from Corry Station, Pensacola. Applicant request for annual leave from TAD was denied. However, on 040318, Applicant took it upon himself to go on unauthorized leave status for a period of four days. After being placed back on restriction upon return to MCBH Kaneohe Bay, Applicant broke restriction by leaving the base and failing to report for 0700 muster on with the BDO), necessary corrective actions explained, sources of a ssistance provided, and discharge warning given .
040504:  Counseling: Advised of deficiencies in performance and conduct (Unauthorized absence from restricted muster. On 040328, Applicant was 36 minutes late for 1800 restriction muster with the DNCO), necessary corrective actions explained, sources of assistance provided, and discharge warning given .
040511:  Forfeiture of pay awarded at NJP on 040426 vacated due to continued misconduct.

040928:  NJP for violation of UCMJ, Article 112: In that LCpl K_ (Applicant), was on board MCBH, on 040904, at or about 0530, 2004, found intoxicated while reporting for a PFT.
         Award: Forfeiture of $369.00 pay per month for 1 month (suspended for 6 months), restriction and extra duty for 14 days. Not appealed.

 041210:  Counseling: Advised of deficiencies in performance and conduct (Drunk on duty. On 040904, applicant reported to a PFT while intoxicated on alcohol. Applicant’s blood alcohol content derived from a blood test was 0.5.), necessary corrective actions explained, sources of assistance provided, and received administrative discharge warning.

041210:  Counseling: Advised of deficiencies in performance and conduct (Pattern of misconduct. Past misconduct which resulted in three NJP’s and three derogatory page 11 entries is well within the criteria for administrative discharge for pattern of misconduct.), necessary corrective actions explained, sources of assistance provided, and received administrative discharge warning.

050111:  Medical evaluation by Makalapa Branch Medical Clinic-Pearl Harbor.
          AXIS I: Adjustment Disorder with Depressed Mood
         AXIS II: Personality Disorder NOS (Narcissistic Traits)
         AXIS III: No diagnosis
         AXIS IV: Routine military life.
         AXIS V (current) 61-70: Some mild symptoms
         AXIS V (highest) 81-90: Absent or minimal symptoms
         Assessment: The patient is responsible for all actions and is currently deemed at low risk of harm to self and others. The patient has committed to seek help should active suicidal/homicidal ideation develop, or should his condition otherwise deteriorate.
         Plan:
         Recommendation:
          Problems/Needs: See “Presenting Issues” and “Symptoms” above
 Objectives-D/C Criteria: ADMIN SEPARATION
Discharge Target Date: APR 2005.
Environ. Asset/Barriers: Supportive spouse/friends/Job dissatisfaction.
Strengths/Vulnerabilities: Intelligence, motivation/irritability, social isolation.
 Individual Therapy: Patient in unlikely to benefit from further counseling or psychotherapy.
Primary recommendation at this time is for ADMIN Separation which he and the command appear to agree would serve both parties best.
Patient provided with self help reference (Feeling Good Handbook) to aid his dealing with stress and depressive symptoms.
Patient may return on an as needed basis should he experience SI/HI or other crisis.
Risk and benefits of therapy and alternatives have been discussed with the patient, including the alternative for no therapy.
050125:  Applicant warned of intent to revoke security clearance. [Extracted from documents provided by the Applicant.]

050203:  Sworn Affidavit from PFC R_ M. C_.
050203:  Sworn Affidavit from LCPL P_C. S.
050204:  Sworn Affidavit from Cpl J_ M. H_.

 050216:  Applicant notified of intended recommendation for discharge by reason of misconduct due to a pattern of misconduct with a characterization of service of under other than honorable conditions. Th e factual basis for this recommendation was your numerous violations of the UCMJ, as evidence by your three nonjudicial punishments and two subsequent 6105 counseling entries for disobeying a lawful order by moving out into town, false official statement, wrongfully wearing the rank of sergeant, unauthorized absence and breaking restriction, and showing up intoxicated for a PFT. Additionally, your record reflects two 6105 counseling entries for wrongfully taking an American flag hanging outside a restaurant, unauthorized absence, falsifying a medical chit, and lying to your platoon sergeant.

050223:  Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.

050223:  Applicant’s Conditional Waiver of Administrative Discharge Board in exchange for character of General (Under Honorable Conditions) discharge submitted to Commanding General, Marine Corps Base Hawaii.

050223:  Commanding Officer, 3 rd Radio Battalion recommendation to Commanding General, Marine Corps Base Hawaii that Applicant’s conditional waiver of Administrative Discharge Board be denied.

 050224:  Counseling: Advised of deficiencies in performance and conduct (Applicant boasting of taking illegal drugs and Applicant failure to adhere to Marine Corps grooming standards. Two Marines have made sworn statements that they overheard applicant at local establishments bragging about illegal drugs. Applicant statements and actions are in violation of Marine Corps standards of conduct. Applicant will discontinue any further statements concerning illegal drug use and obey all orders and regulations under the UCMJ. Applicant h as brought discredit upon himself , the Marine Corps, and the local community.), necessary corrective actions explained, sources of assistance provided.
050307:  Applicant received notification of Competency Review Board . [Extracted from documents provided by the Applicant.]
050317:  Applicant’s Unc onditional Waiver of Administrative Discharge Board submitted to Commanding General, Marine Corps Base Hawaii.

050317:  Commanding Officer, 3 rd Radio Battalion recommended to Commanding General, Marine Corps Base Hawaii , 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 the respondent’s numerous violations of the UCMJ, as evidenced by his three nonjudicial punishment and two subsequent 6105 counseling entries for disobeying a lawful order by moving out into town, false official statement, wrongfully wearing the rank of sergeant, unauthorized absence and breaking restriction, and showing up intoxicated for a PFT. Additionally, his record reflects two 6105 counseling entries for wrongfully taking an American flag hanging outside a restaurant, unauthorized absence, falsifying a medical chit, and lying to his platoon sergeant. The respondent was properly warned and counseled concerning his misconduct. By his actions, he has demonstrated that he has no potential for further military service.

050318:  SJA review determined the case sufficient in law and fact.

050324:  GCMCA, Commander, Marine Corps Base Hawaii directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.
050324:  Commander, Marine Corps Base Hawaii issues Debarment Order from the Commanding General to the Applicant.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20050325 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).

In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable. Specifically, Applicant seems to feel that he was treated unfairly by his command and implies some irregularity with regard to his unconditional waiver. On 20050223 the Applicant submitted a conditional waiver. His waiver was rejected, and he subsequently submitted an unconditional waiver. After a thorough review of the record, the Board could find no evidence of any wrongdoing in the discharge process. The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue. There is no evidence in the record, nor has the Applicant produced any evidence, to support his contention of irregularity in his administrative separation procedure. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case. Relief denied.

In the Applicant’s case, he requests that his character of service be upgraded to honorable. 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 four retention warnings and three nonjudicial punishment proceedings for violations of UCMJ Articles 86 (unauthorized absence), 92 (failure to obey an other lawful order), 1 07 (false official statements), 1 12 (drunk on duty), 121 (larceny), and 134 (wearing un authorized insignia) . Further the Applicant’s continued misconduct resulted in the vacation of punishments suspended at nonjudicial punishment on two occasions. In addition three sworn statements provided to the command established that the Applicant openly admitted to using a controlled substance (a violation of Article 112a). Violations of Articles 92, 107, 112, 112a, 121, and 134 are considered serious offenses for which a punitive discharge is authorized at courts martial. 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. Relief is not warranted.

The Applicant implied that he would like to reenter the military. The following is provided or the edification of the Applicant. The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces. An unfavorable “RE” code is, in itself, not a bar to reenlistment. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter. Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes. .
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 s 92 (failure to obey an other lawful order), 112 (drunk on duty) , 107 (false official statements), 121 (larceny), and 134 (wearing authorized insignia) .

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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