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USMC | DRB | 2006_Marine | MD0600144
Original file (MD0600144.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. MD06-00144

Applicant’s Request
The application for discharge review was received on 20051026. 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. 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. 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 minor disciplinary infractions.



PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application to the Board:

“The reason why I want to upgrade my discharge is because I would like to rejoin and Serve my country in a time of need. I also am thinking about my new family and what is best for me and them.”

 Documentation
Only the service record book was reviewed. The Applicant did not provide additional documentation for the Board’s consideration.

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    19970918 – 19980920               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19980921             Date of Discharge: 20000628

 Length of Service (years, months, days):

 Active: 01 09 08
         Inactive: None

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

 Age at Entry: 18

Years Contracted: 4

Education Level: 12                                 AFQT: 32

 Highest Rank: LCpl                                  MOS: 3531

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.9 (6)                                Conduct: 3.6 (6)

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


Character, Narrative Reason, and Authority of Discharge (at time of issuance):
UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MARCORSEPMAN Par. 6210.2.

 Chronological Listing of Significant Service Events :
970917:  DDC (CG-level, serious offense) waiver granted
990301:  NJP for violation of UCMJ, Article 92: In that Pvt R_, J. D. (Applicant), having knowledge of a lawful order issued by the Commanding Officer, Motor Transport Instruction Company, not to leave the authorized 96 hour liberty area without permission, an order which it was his duty to obey, did, aboard Fort Leonard Wood, MO, on or about 1600/990211, fail to obey the same by wrongfully leaving said authorized liberty limits.
         Award: Forfeiture of $479.00 pay per month for 1 month (suspended for 3 months), restriction and extra duty for 20 days. Not appealed.
990301:  Acknowledged understanding of eligibility but not recommended for promotion to PFC/E-2 for the months of March through June 1999 p rom otion period because of NJP dated 990301. Applicant chose not to make a statement.
991213:  Counseling: Advised of deficiencies in performance and conduct (Violation of barracks regulations; specifically for possessing a butterfly knife in the BEQ which exceeds the maximum blade length of 4 inches.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

991220:  Counseling: Advised of deficiencies in performance and conduct (UA from my appointed place of duty, Liberty Risk sign-in on 991119, 991121, 991123, and 991211.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

 000218:  Counseling: Advised of deficiencies in performance and conduct (Failure to maintain U. S. Armed Forces ID card, smart card and rifle card at all times, which resulted the loss of all items on or about 000113. Failing to report lost items in a timely manner to proper military authorities.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
000330:  NJP for violation of UCMJ, Article 86: In that LCpl R_ (Applicant), did on or about 1300, 000302, without authority, absent himself from his place of duty at which he was required to be, to wit: MTOP section, MWSS-171, MCAS Iwakuni, Japan, and did remain so absent until on or about 1510, 000302.
 Violation of Article 92: In that LCpl R_ (Applicant), having knowledge of a lawful order issued by Commanding General, Marine Corps Bases Japan/III MEF not to consume alcohol while under the legal d rinking age of 21 years old, an order which it was his duty to obey, did at Iwakuni Club, MCAS Iwakuni, Japan, on or about 0234, 000319, fail to obey the same by consuming alcohol.
 Award: Forfeiture of $400.00 pay per month for 2 months, restriction and extra duty for 30 days, reduction to PFC (suspended for 3 months). Not appealed.
000330:  Counseling: Advised of deficiencies in performance and conduct (Without notification did absent self from appointed place of duty from 13 00, 000302 to 1510, 000302. A lcohol related incident on 000319; specifically for disobeying an order from Commander U. S. forces Japan by drinking alcohol, while under the legal drinking age of 21 years old and getting into a verbal altercation with LCpl C_ which escalated into a physical confrontation and injuries, at Club Iwakuni aboard MCAS Iwakuni, Japan.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
000403:  NJP imposed and suspended on 000330 for a period of 3 months vacated and the punishment o rdered executed.
000424:  Counseling: Advised of deficiencies in performance and conduct ( On 3 April 00 disrespectful in language, demeanor and deportment to the barracks duty noncommissioned officer by yelling and shouting at him and refusing to execute orders given by that noncommissioned officer to keep th e noise down in the barracks. O n 13 April 00 at MWSS-171, MTOP section, verbally disrespectful in language, demeanor and deportment, to a noncommissioned officer by yelling “f _ this” and walking off after being given a direct order from Cpl P_, to stay there . O n 1 3 April 00 and 14 April 00 at M WSS-171, MTOP section, disobeying a direct order from Cpl P_ a noncommissioned officer by refusing to wash the vehicles.), necessary corrective actions explained, sources of assistance provided, and advised being processed for administrative discharge action.
000512:  Applicant notified of intended recommendation for discharge under than honorable conditions by reason of misconduct due to minor disciplinary infractions . The factual basis for this recommendation was [Applicant’s] misconduct as evidenced by (2) nonjudicial punishments . Applicant informed the least favorable character of service possible was under other than honorable conditions.

000512:  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.

 000515:  Commanding Officer, Marine Wing Support Squadron 17 1 , recommended Applicant ’s discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions . Commanding Officer’s comments: “PFC R_ (Applicant)’s minor disciplinary infractions warrant separation. Further retention of SNM would have a detrimental effect on the moral, discipline and military effectiveness of this command. Accordingly, I recommend expeditious separation.”
000609:  SJA review determined the case sufficient in law and fact.

 000614:  Commander, 1 st Marine Aircraft Wing, directed Applicant’s under other than honorable conditions discharge by reason of misconduct due to minor disciplinary infractions.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 20000628 by reason of misconduct due to minor disciplinary infractions (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).

When a Marine’s service 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 two nonjudicial punishment (NJP) proceedings for violations of Articles 86 and 92 of the UCMJ. The Applicant’s partially suspended award at NJP on 20000330 was vacated on 20000403 due to the Applicant’s continued misconduct. On 20000424, subsequent to the vacation of the Applicant’s award on 20000403, the Applicant was counseled for disrespectful language and failure to obey lawful orders, violations of Articles 91 and 92 of the UCMJ, respectively. The Applicant’s violations of Articles 91 and 92 of the UCMJ are serious offenses. The Applicant’s conduct is a violation of the consideration given the Applicant at his waivered-enlistment. 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. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment, employment or educational opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. 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. 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 2001.

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, disrespect toward a superior noncommissioned officer or Article 92, failure to obey order/regulation.

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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