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USMC | DRB | 2006_Marine | MD0600355
Original file (MD0600355.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. MD06-00355

Applicant’s Request
The application for discharge review was received on 20060104. 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 20060209. 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 have grown and matured as an adult. I am ready to have a commitment and send my life down the right road I feel that the Military is part of that road. The Past 5 months I have dealed with a lot of adversity do to my living situation. After that situation has improved I told my self that I am not goanna quite in anything I do. If I do I will be back where I was and I don’t want to be there again. I have high goals in life and I plan on getting them.”

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

 Privacy Authorization Form from Congresswoman G_ B_-W_, to S_ D. B_, dtd October         8, 2004
Letter from Congresswoman B_-W_, to BCNR, dtd October 14, 2004
Letter from W. D_ P_, Executive Director, BCNR to Congresswoman B_-W_, dtd       October 29, 2004
Letter from W. D_ P_, Executive Director, BCNR dtd October 29, 2004

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USAR (DEP)     Unknown Date – 20010802           COG
 Inactive: USMCR (DEP)    20011010 – 20020102               COG
          Active: None

 Period of Service Under Review :
Date of Enlistment: 20020103             Date of Discharge: 20030425

 Length of Service (years, months, days):

 Active: 01 03 22 (Does not exclude lost time.)
          Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 26 days
         Confinement:              none

 Age at Entry: 19

 Years Contracted: 4

Education Level: 12                                 AFQT: 39

 Highest Rank: PFC                                   MOS: 0800

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: NA*                  Conduct: NA*

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

*Not Available


 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 :

020618:  NJP for violation of UCMJ, Article 86: In that Private B_, S_, U.S. Marine Corps, did, at 1800, 27 May 02, without authority, absent himself from his appointed place of duty, at which he was required to be, to wit: Student Admin Company, Headquarter Support Battalion, School of Infantry, Training Command, Camp Lejeune, and did remain so absent until 0600, 31 May 02 (3days).
         Award: Forfeiture of $257.00 per month for 1 month (suspended for 6 months), restriction and extra duty for 14 days. Not appealed.

020715:  Counseling: Advised of deficiencies in performance and conduct (Poor attitude and substandard performance which includes failure to stand firewatch, losing government property on two occasions, failing an academic test, and attempting to get out of training by malingering), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

020804:  Applicant to unauthorized absence on 020804.

020830:  Applicant from unauthorized absence on 020830 (26days/returned).

020919:  Forfeiture of pay awarded at NJP on 020618 vacated due to continued misconduct.

020919:  NJP for violation of UCMJ, Article 86: Absence without leave, in that PFC B_ did on or about 2400 on 020803 without authority, absent himself from his unit, to wit: Marine Battery, located at Fort Sill, OK and did remain absent until he returned on or about 2300, 020830.
         Award: Forfeiture of $552.00 per month for 2 months, restriction and extra duty for 45 days. Not appealed.

Undated:         Acknowledged understanding of eligibility but not recommended for promotion to PFC due to NJP on 020919, not eligible until 021201.

Undated:         Acknowledged understanding of eligibility but not recommended for promotion to PFC due to NJP on 020919, not eligible until 030301. Applicant chose not to make a statement.

021107:  Counseling: Advised of deficiencies in performance and conduct (Applicant lack of aptitude while attending the MCCCC-1-03 course which has resulted in academic recycle to the next scheduled class. These deficiencies are: substandard performance by failing to achieve academic course standards, despite retesting. Such performance indicates a lack of adequate study habits, poor initiative, and/or inability to grasp the subject matter.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

021211:  Counseling: Advised of deficiencies in performance and conduct (Applicant has constantly and willingly disregarded the Marine Corps grooming standard set forth in MCO P1020.34F by not shaving. When questioned about your [Applicant] conduct by your [Applicant] instructor you admitted that you were growing a goatee.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

021215:  Counseling: Advised of deficiencies in performance and conduct (Violation of UCMJ, Article 86, being in a UA status from the Marine Battery on 021026 for 25 minutes and from the Marine Corps Cannon Crewman Classroom at 1430 on 021125.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

021216:  NJP for violation of UCMJ, Article 86 (2 specs): Absence without leave.
         Specification 1: In that PVT B_ did on or about 021026 without authority, absent himself from his appointed place of duty, to wit: Study Hall and did remain so absent until he returned on or about 021026.
         Specification 2: In that PVT B_ did on or about 1430, 021125 without authority, absent himself from his appointed place of duty, to wit Class and did hide in the Battery until class was over.
         Award: Forfeiture of $552.00 per month for 2 months, 30 days correctional custody unit. Not appealed.

Undated:         Acknowledged understanding of eligibility but not recommended for promotion to PFC due to NJP on 021216, not eligible until 020301. Applicant chose not to make a statement.

030219:  Counseling: Advised of deficiencies in performance and conduct (On 1 February 2003 SNM and another Marine engaged in a physical altercation while under the influence of alcohol in the Marine Corps Battery Physical Fitness Pit, specifically resulting in a Marine receiving two black eyes and a bruised nose.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued. Applicant chose not to make a statement.

030219:  Counseling: Advised of deficiencies in performance and conduct (On 1 February 2003 SNM and another Marine engaged in a physical altercation while under the influence of alcohol in the Marine Corps Battery Physical Fitness Pit, specifically resulting in a Marine receiving two black eyes and a bruised nose.), necessary corrective actions explained and sources of assistance provided. Applicant notified of administrative separation. Applicant chose not to make a statement.

030219:  Counseling: Advised of deficiencies in performance and conduct (A pattern of misconduct resulting in several formal counseling entries and two NJPs between 10 December 2002 and 10 February 2003.), necessary corrective actions explained and sources of assistance provided. Applicant notified that he is being processed for administrative separation. Applicant chose not to make a statement.

030221:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of pattern of misconduct. The Commanding Officer recommends a characterization of service of under other than honorable conditions. The factual basis for this recommendation was a history of deviant behavior as described in the Applicant’s service record book. The Applicant violated the Uniform Code of Military Justice on four (4) occasions and received Non-judicial Punishment on three (3) occasions.
030221:  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.
030304:  Acknowledged understanding of eligibility but not recommended for promotion to PFC due to pending administrative separation, not eligible until 040301. Applicant chose not to make a statement.

030402:  Commanding Officer, Marine Corps Artillery Detachment, Fort Sill, OK recommended Applicant’s discharge under other than honorable conditions by reason of pattern of misconduct.

040410:  GCMCA, Commanding General, Training Command, Quantico, VA directed the Applicant's discharge under other than 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 20030425 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).

The Applicant states that he has “grown and matured as an adult”. While he may feel that his youth and immaturity were the underlying causes of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service. The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.

 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. T he Applicant’s service was marred 3 nonjudicial punishment proceedings for violations of Articles 86 (4 specifications of UA, to include a period of 26 days) of the UCMJ. In addition the Applicant received 4 retention warnings and was counseled as he was eligible for promotion, but not recommended, on 4 occasions. Also, the Applicant had a suspended forfeiture of pay, awarded at NJP, vacated due to continued misconduct. 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 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 any 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 P1900.16F), effective 01 Sep 2001 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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