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USMC | DRB | 2006_Marine | MD0600328
Original file (MD0600328.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. MD06-00328

Applicant ’s Request
The application for discharge review was received on 20051212 . 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 the American Legion as the representative on the DD Form 293.
Decision

A documentary discharge review was conducted in Washington, D.C. on 20061108 . 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 the commission of a serious offense.



PART I -

APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant ’s issues, as stated on the application:
“ My name is A_ M_( Applicant ) I served in the United States Marine Corps I was given the discharge of Other than Honorable because I went U.A. I went U.A. while I was at MCT/SOI Camp Geiger, N.C. There were some family issues that were going on and I had just lost my grandfather, whom I lived with along with my father. My father would call me up while I was there and tell me he didn’t know what to do. He was completely heartbroken that his father had died and his daughter (me) was gone. He kept making threats of suicide an that scared me. I really didn’t know who to talk to about the situation. I was frightened . I went U.A. to go back home and get my father help. I was young and immature looking back on it, Now I would like to try and better my life. ”
Additional issues submitted by Applicant ’s representative ( American Legion):

“Equity Issue: Based on our review of evidentiary record and on behalf of this former member, we request that the Board consider provisions of SECNAVINST 5420.174D, Part IV, Paragraph 403 m (7), as it pertains to post-service conduct, in assessing the merits of this application.
________________________________________ _______________________________

In accordance with Title 32, CFR, section 724.116 and SECNAVINST 5420.174D, Part I, Paragraph 1.20, The American Legion submits to the Naval Discharge Review Board (NDRB or Board) the above issue(s) and following statement in supplement to this Applicant’s petition.

Our review of the service record reveals that this former member maintained 3.6 Proficiency and 2.6 Conduct markings, and earned the NDSM, SRB. She was awarded a single NJP on 011015 for VUCMJ, Article 86. Following due process notifications, she was discharged Under Other Than Honorable Conditions due to misconduct as authorized by MARCORSEPMAN, Paragraph 6210.5.

Essentially, as noted on DD Form 293, this Applicant is requesting that her discharge be upgraded because family problems, including the death of her grandfather and her father’s suicidal tendencies, contributed to and mitigated her misconduct of record. She has submitted 2 pages of additional documentation attesting to her good post-service character his post-service educational pursuits for consideration.
The American Legion’s express purpose in providing this statement and any other submittals or evidence filed is to assist this Applicant in the clarification and resolution of the impropriety or inequity raised. To that end, we rest assured that the NDRB’s final decision will reflect sound equitable principles consistent in law, regulation, policy and discretion as promulgated by Title 10, USC, Section 1553, and set forth in Title 32, CFR, Part 724 and SECNAVINST 5420.174D.

 This case is now respectfully submitted for deliberation and disposition. ”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Character Reference ltr from R _ S. T _, dtd November 21, 2005
Character Reference ltr from K_ P_, dtd November 14, 2005

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    20010430 - 20011125       COG
         Active: None
Period of Service Under Review :
Date of Enlistment: 20011126              Date of Discharge: 20030113

Length of Service (years, months, days):

 Active: 0 1 0 1 18 (Does not exclude lost time.)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 149 day s
         Confinement:              40 day s

Age at Entry: 1 7 (with parental consent)

Years Contracted: 4
Education Level: 12                                 AFQT: 65

Highest Rank: PFC                                    MOS: 9900

Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3 . 6 ( 2 )                                 Conduct: 2 . 6 ( 2 )
Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): Sharpshooter Rifle Badge National Defense Service Medal


Character, Narrative Reason, and Authority of Discharge (at time of issuance):
UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MARCORSEPMAN Par. 6210.6.

 Chronological Listing of Significant Service Events :

010430 :  Pre-service waiver granted.
010501 :   Request for wavier for five pounds overweight.

020323:  Applicant to unauthorized absence at 1945 on 020323.

 020422:  Applicant declared a deserter.

 020820 :  Applicant from unauthorized absence at 1350 on 020820 ( 149 days/apprehended).
020822:  Applicant found fit for confinement.

 020823:  Applicant to confinement.

02100 3 :  Applicant from confinement (40 days).

021004:  Applicant ’s Memorandum of Pretrial Agreement entering a voluntary plea of guilty to the charge and specification of violation of Article 86, unauthorized absence from 020323 to 020820.

 021029:  Applicant ’s Memorandum of Pretrial Agreement is approved .

 021029:  NJP for violation of UCMJ, Article 86: In that Private M_( Applicant ), A_ D., U.S. Marine Corps, did, at or about, 1945, 020323, without authority, absent herself from her appointed place of duty, at which she was required to be, to wit: Student Admin Company, Headquarters Support Battalion, School of Infantry, Training Command, Camp Lejeune, and did remain so absent until 1430, 020821.
         Award: Forfeiture of $552.00 per month for 2 months, restriction for 60 days. Not appealed.

 021106 :  Applicant notified of intended recommendation for discharge as under other than honorable by reason of commission of serious offense. The factual basis for this recommendation was unauthorized absence from 020323 to 020821, a violation of Article 86. Applicant informed that the Commanding Officer is recommending a characterization of under other than honorable conditions.

021106 :  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.

021118 :  Commanding Officer, Headquarters and Support Battalion, School of Infantry, training Command, Camp Lejeune via Commanding Officer, School of Infantry, Training Command, Camp Lejeune , recommended to Commanding General, Marine Corps Base, Applicant ’s discharge under other than honorable conditions by reason of commission of a serious offense based on the provisions of paragraph 6210.6 of the reference. The factual basis for this recommendation was violation of Article 86, unauthorized absence, as identified by enclosure (3) pages 10 though 14. Commanding Officer’s comments: “ Pvt M_( Applicant ) has demonstrated a blatant disregard for rules and regulations that govern the good order and discipline of the Marine Corps. Pvt M_ has shown a definite lack of Honor, Courage and Commitment. She has proven to me that she does not possess the discipline for continued service in the Marine Corps. ”
021127 :  Commanding Officer, School of Infantry, Training Command, Camp Lejeune, NC , recommended Applicant ’s discharge under other than honorable conditions by reason of misconduct due to a commission of a serious offense.

021205 :  SJA review determined the case sufficient in law and fact.

 021211 :  GCMCA, Commanding General, Marine Corps Base, Camp Lejeune, NC , directed the Applicant 's discharge under other than honorable conditions by reason of misconduct due to a commission of a serious offense.


PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030113 by reason of misconduct due to the commission of a serious offense (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 requests upgrade of the characterization of her discharge. 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 a nonjudicial punishment proceeding for violation of UCMJ Article 86 (unauthorized absence for 40 days). Unauthorized absences for over 30 days 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 her service, reflects her willful failure to meet the requirements of her contract with the U.S. Navy and falls far short of that required for an upgrade of her characterization of service. Relief is not warranted.

The Applicant contends her disciplinary problems were the result of stress caused by a family situation. The NDRB recognizes that serving in the U.S. Marine Corps is challenging. Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country. It must be noted that most members of the Marine Corps serve honorably and therefore earn their honorable discharges. In fairness to those members of the Marine Corps, commanders and separation authorities are tasked to ensure that undeserving Marines receive no higher characterization than is due. The NDRB found that the Applicant's service was equitably characterized. Relief denied.

The Applicant also presented post service accomplishments to support upgrade of her 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. 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. 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 01 September 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 86 ( unauthorized absence for more than 30 days ) .

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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