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USMC | DRB | 2006_Marine | MD0600172

Original file (MD0600172.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. MD06-00172

Applicant’s Request

The application for discharge review was received on 20 051101. 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 20060908 . 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 a letter dtd October 18, 2005 :

“Dear Sir,

I have made a written request that my military records be sent to you. I feel that I deserve a review of my discharge because of the following:

I served in the United States Marine Corp from March 17, 2002 to March 25, 2005. I served a tour of duty in the Persian Gulf for 6 months and received decoration for my service there. I had no behavioral problems prior to serving in the Persian Gulf, a stressful situation for me. After returning from the Persian Gulf I did some things that I am not proud of. My parents felt that I was suffering from Post-traumatic Stress Syndrome and my parents and I requested a psychological evaluation but this was never granted. I was told that I was not homicidal or suicidal; therefore, I did not qualify for a psychological evaluation

I felt like I was unable to function in my assigned duties. I was extremely disappointed in my assignment after returning from the Persian Gulf and the inexperienced I was associated with. My emotional status was overwhelming and lead to my absence from work over a long period of time. I was eventually arrested for the unauthorized absence from work and spent several months in the Brig. Rather than follow through with an official Court Martial and trial I was discharged from the Marines as “other than honorable.” The charges for which I was detained are still listed in my National Personnel Records. These charges without any final dispensation are currently preventing me from obtaining employment or being excepted to college. These charges will always be on my record without dispensation. I am requesting that a decision be made of the finality of these charges.

Upon being discharged, I was told by Gunny D_ that the papers were signed and completed. I would receive my DD Form 214 by mail and I was finished in the Marines and that I could leave. It was a complete surprise to me to find out at a later date that all of the paper work had not been completed. Gunny D_ had been sent overseas and my paper work had not been completed by Gunny D_. Because of the delay in signing the rest of the paper work I was eventually charged with desertion. It was an extremely anxious time for me but I did return to sign the papers. I was extremely nervous and felt like I would be put back in the Brig. Because of previous events, I felt like there was no one that I could trust. The paper work was eventually signed and I left Camp Lejeune, NC and returned home to Laurel, MS.

I appreciate your time and effort investigating the type of discharge and charges pending on my military record and National Personnel Records. The charge pertaining to assaulting a female has been dismissed by the Onslow County Court. Any further questions regarding this can be referred to T_ O_, Attorney at Law, in Jacksonville, NC.

I am respectfully requesting that the type of discharge, the charge of desertion and assault charge be reviewed and reduced if possible so that I can obtain employment or further my education.

Sincerely submitted,

J_ M. D_(Applicant)”

Documentation

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

Applicant’s DD Form 214 (Member 4)
Ltr from Applicant, dtd October 18, 2005
Ltr from Applicant, dtd October 8, 2005

PART II - SUMMARY OF SERVICE

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

         Inactive: USMCR (DEP)    20010926 – 20020317               COG
         Active: None

Period of Service Under Review :

Date of Enlistment: 20020318             Date of Discharge: 20050304

Length of Service (years, months, days):

Active: 0 3 11 17 (Does not ex clude lost time.)
         Inactive: None

Time Lost During This Period (days):

         Unauthorized absence: 167 days
         Confinement:              25 days

Age at Entry: 17 (Parental Consent)

Years Contracted: 4

Education Level: 10 (GED)                          AFQT: 35

Highest Rank: LCpl                                  MOS: 3381

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency: 3.7 (9)              Conduct: 3.7 (9)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): Global War on Terrorism Service Medal, Sea Service Deployment Ribbon, National Defense Service Medal, Navy Unit Commendation, Rifle Marksmanship Badge, Pistol Marksmanship 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 :

021125: Company NJP for violation of UCMJ, Article 86: Unauthorized Absence.
         Specification: In that PFC D_ (Applicant), was UA, without authority, at 0731 on 021113.
Violation of UCMJ Article 86: Unauthorized Absence.
Specification: In that PFC D_ (Applicant) was UA , without authority from formation on 021108.
Violation of UCMJ Article 92:
Specification: In that PFC D_ (Applicant) disobeyed a direct order from his NCOIC on 020925.          Award: Forfeiture of $289.00 pay per month for 1 month, restriction and extra duty for 14 days. Not appealed.

030901: Counseling: Advised of deficiencies in performance and conduct (L/Cpl D_ (Applicant) was UA from appointed place of duty that being the Rifle range on are about 18 August 03 . Applicant did not show up for muster to be transported to the rifle range. Because of the end of the qualification season Applicant will be unqual for this year. Applicant is advised not recommended for promotion for the months of September, October, and November of 2003.) . N ecessary corrective actions explained, sources of assistance provided, disciplinary warning issued.

031017: Battalion NJP for violation of UCMJ, Article 86: Unauthorized Absence.
         Specification: On or about 030920, LCpl D_ (Applicant) was 30 minutes late for cooks mount.
         Violation of UCMJ Article 86: Unauthorized Absence.
         Specification: On or about 030921, LCpl D_ (Applicant) was 30 minutes late for cooks mount.
         Violation of UCMJ Article 86: Unauthorized Absence.
         Specification: On or about 031003, LCpl D_ (Applicant) was 45 minutes late for cooks mount.
         Violation of UCMJ Article 92:
         Specification: On or about 031003, LCpl D_ (Applicant) was ordered to stay in the barracks and violated said order.          Award: Forfeiture of $575.00 pay per month for 2 months (suspended for 6 months), 30 days CCU. Not appealed.

040122: Applicant arrested by civilian authorities for failing to appear at scheduled court dates (NFI). (Extracted from counseling entry of 040128 , below.)

040128 : Counseling: Advised of deficiencies in performance and conduct (Failure to follow orders regulation. Specifically that Applicant had numerous court dates and failed to appear and subsequently was arrested on 22 January 04. Applicant has been advised that the suspension received in the Battalion NJP held on 17 October 2003 will be vacated due to the arrest.) N ecessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

040623: NJP for violation of UCMJ, Article 86: Unauthorized Absence.
         Specification: In that on or about 01 Feb 04, PFC D_, (Applicant) was UA from his appointed place of duty to wit: morning colors.
         Violation of UCMJ, Article 86: Unauthorized Absence.
         Specification: In that on or about 01 Feb 04, PFC D_, (Applicant) was UA from his appointed place of duty to wit: checking in for restriction.
         Violation of UCMJ, Article 86: Unauthorized Absence.
         Specification: In that on or about 01 Feb 04, PFC D_, (Applicant) was UA from his appointed place of duty to wit: report to Company Office.
Violation of UCMJ, Article 86: Unauthorized Absence.
Specification: In that on or about 01 Feb 04, PFC D_, (Applicant) was UA from his appointed place of duty to wit: field duty.          Award: Forfeiture of $596.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-1. Not appealed.

040710: Applicant broke restriction. (Extracted from SCM entry of 040804, below.)

040711: Applicant broke restriction. (Extracted from SCM entry of 040804, below.)

040712: Applicant broke restriction. (Extracted from SCM entry of 040804, below.)

04080 4 : Breaking restriction c harges referred to summary court-martial.

040804: Summary Court-Martial.
         Charge 1: violation of the UCMJ, Article 134 (Restriction, Breaking):
         Specification 1: In that Private J_ D_ (Applicant), United States Marine Corps, Headquarters and Service Battalion, 2d Forces Service Support Group, Camp Lejeune, NC, having been restricted to the limits of barracks, duty, worship, mess, and restriction muster with the Battalion OOD, did, on or about 10 July 2004, break said restriction.
         Specification 2: In that Private J_ D_ (Applicant), United States Marine Corps, Headquarters and Service Battalion, 2d Forces Service Support Group, Camp Lejeune, NC, having been restricted to the limits of barracks, duty, worship, mess, and restriction muster with the Battalion OOD, did, on or about 11 July 2004, break said restriction.
         Specification 3: In that Private J_ D_ (Applicant), United States Marine Corps, Headquarters and Service Battalion, 2d Forces Service Support Group, Camp Lejeune, NC, having been restricted to the limits of barracks, duty, worship, mess, and restriction muster with the Battalion OOD, did, on or about 12 July 2004, break said restriction.
         Pleas: Guilty to the Charge and all specifications thereunder.
         Findings: Guilty to the Charge and all specifications thereunder.
         Sentence: Forfeiture of $795.00 per pay month for 1 month, confinement for 30 days.
         CA action 040804: Sentence approved and ordered executed.

040809: Commanding Officer, Food Service Company, recommends to Commanding Officer, Headquarters and Service Battalion that Applicant be separated from the Marine Corps for a pattern of misconduct.

040818: Applicant notified of intended recommendation for discharge by reason of misconduct due to pattern of misconduct with a characterization of service as under other than honorable conditions. The factual basis for this recommendation was Applicant’s Summary Court Martial date d 04 Aug 04, Battalion NJP dated 17 Oct 03, Company NJP dated 25 Nov 02, as well as Applicant’s multiple page 11s.

040819: Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.

040825: Commanding Officer, Headquarters and Service Battalion, 2 d Force Service Group, recommended to Commanding General, 2 d Force Service Support Group that the Applicant be discharged under other than honorable conditions by reason of pattern of misconduct. The recommendation was based on Summary Court Martial dated 4 August 04, Battalion NJP dated 17 Oct 03, Company NJP dated 25 Nov 02, as well as multiple page 11s. Commanding Officer’s comments: “ Due to Applicant’s inability to perform and conduct himself as a Marine, it is my recommendation that he be discharged with an Other Than Honorable conditions discharge due to pattern of misconduct.”

040916: Counseling: Advised of deficiencies in performance and conduct (Failure to follow orders, regulations and directives. Specifically a series of judicial and administrative proceedings held as a result of pattern of misconduct subject of the following: Summary court Martial dated 04 August 04, Battalion NJP dated 17 October 03, Company NJP dated 25 November 02.) . A dvised being processed for administrative separation for a pattern of misconduct .

041001: SJA review determined the case sufficient in law and fact.

041005: Commander, 2 d Force Service Support Group, advised the Commandant of the Marine Corps (MMSB), that the Applicant will be discharged under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

041014: Applicant to UA(AWOL).

050301: Applicant from UA(AWOL) .

050304: DD214: Applicant discharged this date.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20050304 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 ).

In the Applicant’s issue that he may have been suffering from Post Traumatic Stress Syndrome, thus implying that his discharge was inequitable in that he was not discharged on that basis , the Board found no evidence supporting such a conclusion. The Applicant states that he “requested a psychological evaluation but this was never granted…” Applicant’s medical records indicate numerous fitness evaluations, including a post-deployment survey and pre-confinement physicals in which Applicant was asked to identify any mental health concerns and apparently did not do so. Nor does Applicant provide any evidence indicating how his “emotional status ” caused or contributed to his repeated and well-documented pattern of misconduct , which consisted of a counseling for violation of Article 86 of the UCMJ and nonrecommendation for promotion, a retention warning for being arrested for failing to appear at a scheduled court hearing, 3 nonjudicial punishment proceedings for violations of Articles 86 and 92 of the UCMJ , and a Summary Court-Martial for violation of Article 86 of the UCMJ. The NDRB advises the Applicant that certain serious offenses warrant separation from the Marine Corps in order to maintain proper order and discipline. Violations of Article 92 are considered serious offenses and a punitive discharge is authorized if adjudged at a special or general court-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.

Regarding Applicant’s issue that “(t)hese charges without any fin al dispensation are currently preventing me from obtaining employment or being excepted to college”, the 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 took note of Applicant’s apparent concern that he, due to a belief that he “was finished in the Marines and could leave” in October 2004, faced adverse action as a potential deserter from the Marine Corps. Whatever the reason for the confusion, the Board specifically found that Applicant’s discharge and characterization of service were determined prior to this period of time, that Applicant’s status during this time had no bearing on his discharge, and that this period of alleged UA(AWOL) was not relevant to the Board’s finding that the Applicant’s discharge was proper and equitable.

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 P1900.16 F ), effective 1 Sep 01 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 .

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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USMC | DRB | 2006_Marine | MD0600172

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