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USMC | DRB | 2006_Marine | MD0600223
Original file (MD0600223.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. MD06-00223

Applicant’s Request
The application for discharge review was received on 20051114 . The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable and the Narrative Reason for Separation be changed . 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 General (Under 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:
“ So I can better myself and serve my country by working and building aircrafts .”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Employment Reference ltr from J_ B_, dtd October 28, 2005
Character Reference ltr from D_ R_, dtd November 4, 2004
Character Reference ltr from T_ M_ , undtd
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    19970820 - 19980607       COG
          Active: None
Period of Service Under Review :
Date of Enlistment: 19980608              Date of Discharge: 20010409

Length of Service (years, months, days):

 Active: 0 2 1 0 0 2
         Inactive: None

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

Age at Entry: 1 9

Years Contracted: 5

Education Level: 12                                 AFQT: 58

Highest Rank: PFC                                    MOS: 6257

Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4 . 2 ( 7 )                        Conduct: 3.9 ( 7 )
Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): Sea Service Deployment Ribbon.


Character, Narrative Reason, and Authority of Discharge (at time of issuance):
GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: MARCORSEPMAN Par. 6210.3.
Chronological Listing of Significant Service Events :

990801:  Applicant a cknowledged understanding of eligibility but not recommended for promotion to L Cpl for the month of Aug 1999 Prom period because of not qualifying with a rifle, and being UA from place of origin. Applicant chose not to make a statement.
990802:  Counseling: Advised of deficiencies in performance and conduct (violation of Article 86 Unauthorized Absence appointed place of duty on 29 July 1999 when missed movement to the rifle range. N ot recommended for promotion for August and September.) N ecessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
000519:  Squadron NJP for violation of UCMJ, Article 123a: Making a check without sufficient funds.
 Violation of UCMJ Article 91: Insubordinate conduct toward Non Commissioned Officer.
          Award: Restriction and extra duty for 45 days, reduction to E-1 (suspended for 6 months). No indication of appeal in record .
000519:  Counseling: Advised of deficiencies in performance and conduct (writing checks with insufficient funds, and disrespect toward a Non Commissioned Officer.) S ources of assistance provided, disciplinary and discharge warning issued.
00072 1 :  Applicant reduced to E-1. NJP imposed and suspended on 000724 (sic * ) for a period of 6 month/day vacated, and punishment ordered executed for violation of Article 86 . [*Administrative note: date of NJP indicated on service record page 11 entry is an error. Date of NJP was 000519.]

001128:  Squadron NJP for violation of UCMJ, Article 121: Larceny.
         Award: Forfeiture of ½ of one month base pay (suspended for 1 month), restriction and extra duty for 45 days. Not appealed.
001128:  Counseling: Advised of deficiencies in performance and conduct (continued misconduct and conduct unbecoming a Marine.) S ources of assistance provided, disciplinary and discharge warning issued.
001215:  Counseling: Advised of deficiencies in performance and conduct (pattern of misconduct.) . N ecessary corrective actions explained, sources of assistance provided, discharge warning issued.
001218:  Squadron NJP for violation of UCMJ, Article 92: Fai lure to obey an order on 001209 (driving car on base without proper insurance).
Violation of UCMJ Article 107: Making a false statement on 001209 (telling Capt W_ that he had insurance when he did not) .
         Award: Forfeiture of $502.00 pay per month for 1 month (suspended for 6 months). Not appealed.
0012 19 :  Applicant notified of intended recommendation for discharge by reason of misconduct due to a pattern of misconduct with a characterization of service as under other than honorable conditions. The factual basis for this recommendation was Applicant’s misconduct and recent NJP’s .

001219:  Commanding Officer, Marine Fighter Attack Squadron 232 recommended to Commanding General, Third Marine Aircraft Wing, via Commanding Officer, Marine Aircraft Group 11, Applicant’s discharge under other than honorable conditions by reason of misconduct a pattern of misconduct.

 001221:  Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.
010116:  Commanding Officer, Marine Aircraft Group 11 recommends Applicant be discharged with a characterization of service as under other than honorable conditions.
010305:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed a pattern of misconduct, that such misconduct warranted separation, and recommended discharge with a general (under honorable conditions).

010309 :  SJA review determined the case sufficient in law and fact.
010314 :  GCMCA, Commanding General, 3 rd Marine Aircraft Wing directed the Applicant's discharge with a general (under honorable conditions) by reason of misconduct due to a pattern of misconduct .

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20010409 by reason of misconduct due to a pattern of misconduct (A) with a service characterization of general (under 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 ).

When a Marine’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions. Characterization of service as general (under honorable conditions) 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 nonrecommendation for promotion to Lance Corporal, 3 formal counselings regarding misconduct, a retention warning, 3 nonjudicial punishment proceedings for violations of Articles 91, 92, 107, 121 and 123a of the UCMJ and a vacated suspended reduction in rank. 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 Marine Corps in order to maintain proper order and discipline. Violations of Article 91, 92, 107, 121 and 123a are considered serious offenses and a punitive discharge is authorized if adjudged at a special or general court-martial. Relief is not warranted.

In regard to the Applicant’s request to change the narrative reason for separation, the Board found that the separation process was in compliance with the Marine Corps Separations Manual. A Marine may be separated when there is a pattern of more serious misconduct than in paragraph 6210.2 (minor disciplinary infractions) which include[s] two or more discreditable involvements with civil and/or military authorities or two or more instances of conduct prejudicial to good order and discipline within one enlistment. Such a pattern may include both minor and more serious infractions. The record demonstrates that the Applicant was properly warned that continued misconduct could result in administrative separation and was given a reasonable opportunity to rehabilitate himself. A pattern of misconduct is clearly documented in the service record. An Administrative Discharge Board unanimously found that a pattern of misconduct existed and the Staff Judge Advocate found the proceedings to be legally sufficient. The separation authority determined that a pattern of misconduct clearly described the reason for discharge. Since no other Narrative Reason for Separation could more clearly describe why the Applicant was discharged, a change would be inappropriate.


In regard to the Applicant’s reason for requesting an upgrade (“So I can better myself and serve my country by working and building aircrafts”), 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 following is provided for the edification of the Applicant. 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. The Applicant provided three letters of recommendation from his fiancée, former employer and friend as documentation of post-service accomplishments. The Applicant's efforts need to be more encompassing than those provided. For example, the Applicant could have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, evidence of drug free existence, and certification of non-involvement with civil authorities. At this time, the Applicant has not provided sufficient documentation of post service character and conduct to mitigate the misconduct that resulted in the characterization of discharge. Therefore, no relief will be granted.

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 P1900.16E), effective 31 Jan 97 until 31 Aug 01.

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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