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USMC | DRB | 2006_Marine | MD0600506
Original file (MD0600506.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. MD06-00506

Applicant ’s Request
The application for discharge review was received on 20060221 . 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 20061214 . 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 t hat 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 am requesting a discharge upgrade to join the National Guard. I have received the RE-4 waiver but need my discharge type upgraded. The incidents I was discharged for were small incidents, two fights and a few under-age drinking charges. All of them resulted in NJPs excepting one, resulting in a Summary Court-Martial. Almost all people in my chain of command, including my CO, did not believe this warranted an admin. discharge. Since then, I have had only one incident in my civilian life in the three years I have been discharged, and I completed the required probation for it. ”
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 also consider provisions of SECNAVINST 5420.174D, Part V, Paragraph 503, as it pertains to post-service conduct, in assessing the merits of this application.


In accordance with Title 32, CFR, section 724.116 and SECNVINST 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.

Essentially, as noted on DD Form 293, this Applicant is requesting that his discharge be upgraded because it does not represent his true character and so he can enter the National Guard. He has submitted 1 additional document attesting to his post-service character for consideration.

Our review of the SR shows that this Applicant earned a Good Conduct Medal, National Defense Service Medal, Sea Service Deployment Ribbon, and the Rifle Marksman Badge (2). This former member was awarded NJP on 020130 for VUCMJ Article 92 and VUCMJ Article 128. On 020515, he was awarded NJP for VUCMJ Article 86 and VUCMJ 92. On 021107, he was awarded NJP for VUCMJ Article 92. On 021227, he was awarded NJP for VUCMJ Article 92, VUCMJ Article 128, and VUCMJ for Article 117. On 030116, he was awarded NJP for VUCMJ Article 92. This Applicant was discharged Under Other Than Honorable Conditions for misconduct as authorized by MARCORSEPMAN PAR 6210.3.

The American Legion’s express purpose in providing this statement, and any other submittals or opinions of record, is to aid the Applicant in resolving any improprieties or inequities in the character and basis for discharge. Moreover, we rest assured that the Naval Discharge Review Board’s final decision will reflect sound equitable principles consistent in law, regulation, policy and discretion as promulgated by title 10 U.S.C., section 1553, and set forth in 32 C.F.R., part 724; SECNAVINST 5420.174C, enclosure (1).

This case is now respectfully submitted to the Board for deliberation and disposition. ”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant ’s DD Form 214 (Service - 2)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    20001025 - 20010409       COG
         Active: None
Period of Service Under Review :
Date of Enlistment: 20010410              Date of Discharge: 20030227

Length of Service (years, months, days):

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

 Time Lost During This Period (days):
         Unauthorized absence: 3 days
          Confinement:              2 1 days
Age at Entry: 18
Years Contracted: 4
Education Level: 12                                 AFQT: 8 0

 Highest Rank: LCpl                                   MOS: 0311

Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.8 ( 7 )                                 Conduct: 3.5 ( 7 )
Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): National Defense Service Medal, Sea Service Deployment Ribbon, Rifle Marksman Badge (2d Awd)


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 :

020130:  NJP for violation of UCMJ, Article 92:
         Specification: At Co I, 3d Bn, 3d Mar on or about 1 745, 020119 PFC H _( Applicant ) violated MCO 1700.3G by consuming alcohol while underage.
Violation of UCMJ, Article 128 : At Co I, 3d Bn, 3d Mar on or about 1745, 020119 PFC H_ did assault LCpl S_ J. G_ by striking him with a gerber.
         Award: Forfeiture of $ 289.00 per month for 1 month, restriction and extra duty for 14 days. Not appealed.
020130:  Counseling: Advised of deficiencies in performance and conduct (In accordance with Para 6105 of MCO P1900.16, MARCORPSEPMAN, concerning misconduct which resulted in NJP on 020130.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

 020515:  NJP for violation of UCMJ, Article 86: At Co I, 3d Bn, 3d Mar, Angeles City, Philippines on or about 0001, 020509 PFC H_( Applicant ) was absent from his appointed place off duty, to wit: Company Formation.
Violation of UCMJ, Article 92: At Co I, 3d Bn, 3d Mar, Angeles City, Philippines on or about 0001, 020509 PFC H_ violated BnO 1700,3G by consuming alcohol while underage.
         Award: Forfeiture of $ 289.00 pe r month for 1 month, restriction and extra duty for 14 days . Not appealed.
020515:  Counseling: Advised of deficiencies in performance and conduct (SNM was the subject of a Company NJP proceeding for UA and underage drinking.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

 020615:  Acknowledged understanding of eligibility but not recommended for promotion to LCpl for a period of 3 months in accordance with MCO P1400.32C (par 1204.3J). Applicant chose not to make a statement.

 020918:  Substance Abuse Counseling Center, MCB Hawaii. Applicant assessed and given a deferred diagnosis. [Extracted from Director, Substance Abuse Counseling Center letter dated 021106. ]

021106:  Director, Substance Abuse Counseling Center informed Commanding Officer, 3 rd Battalion, 3 rd Marines, Marine Corps Base Hawaii of Applicant ’s completion of the Alcohol Impact Education Course on 021024. [Extracted from Director, Substance Abuse Counseling Center letter dated 021106.]

021107:  NJP for violation of UCMJ, Article 92 : At Co 1, 3d Bn, 3d Mar on or about 0720 on 021007, LCpl H_( Applicant ) fell out of the morning platoon run. When asked why he fell out by Cpl A_, he said that he did not care. With the response, Cpl A_ smelled alcohol on LCpl H_’s breath. LCpl H_ admitted he had been drinking. LCpl H_ is underage and is going through treatment with SACO, so he should not even be drinking at all.
         Award: Forfeiture of $ 619.00 per month for 2 month s , restriction and extra duty for 45 days, reduction to E- 2 . Not appealed.

 021203:  Applicant to unauthorized absence on 021203.

021205:  Applicant from unauthorized absence on 021205 (3 days).

 021227:  Summary Court-Martial.
         Charge I : violation of the UCMJ, Article 92 :
         Specification: On or abt 021112, having knowledge to report to the company office as a runner, wrongfully not reporting to the company office. Plea : Guilty. Findings : Guilty.
         Charge II: violation of the UCMJ, Article 117:
          Specification 1: On or abt 021112, wrongfully used provoking words, to wit: “F--- Off”, or words to that effect, to LCpl S_ J. H_. Plea : Guilty. Findings : Guilty.
          Specification 2: On or abut 021203, wrongfully used provoking words, to wit: “F--- You,” or words to that effect, to LCpl K_ D. K_. Plea : Guilty. Findings : Guilty.
          Charge III: violation of the UCMJ, Article 128:
         Specification 1: On or about 021112, unlawfully strike LCpl H_ with his hands and arms. Plea : Guilty. Findings : Guilty.
         Specification 2: On or about 021203, unlawfully strike LCpl K_ by shoving LCpl K_ with his hands. Plea : Guilty. Findings : Guilty.
          Sentence: Forfeiture of $ 619.00 , confinement for 30 days.
         CA action 021227 : Sentence approved and ordered executed .

021227:  Applicant to confinement at Naval Brig, Ford Island, Pearl Harbor, HI. Applicant will receive 3 days Allen credits for time spent in pretrial confinement.


030116:  NJP for violation of UCMJ, Article 92: At Co I, 3d Bn, 3d Mar on or about 1020, 021227 PFC H_ violated BnO 1700.3G by consuming alcohol while underage.
         Award: Forfeiture of $ 575.00 per month for 2 month s , restriction and extra duty for 45 days, reduction to E- 1 . Forfeiture, restriction and extra duty suspended for 6 months. Not appealed.

 030116 :  Counseling: Advised of deficiencies in performance and conduct ( In accordance with Para 6105 of MCO P1900.15, MARCORPSEPMAN, concerning misconduct which resulted in numerous violations of the UCMJ, to include UA, failure to obey order or regulation, (three) counts of assault (two) counts of using provoking speeches or gestures, and (four) counts of underage drinking, as supported by summary court-martial, four nonjudicial punishments, and two page 11 entries. ), necessary corrective actions explained, sources of assistance provided, and advised being processed for administrative discharge action.
030117:  Applicant released from confinement.

 030206:  Applicant signed VA S tatement of U nderstanding.
030206 :  Applicant notified of intended recommendation for discharge as under other than honorable conditions by reason of misconduct due to a pattern of misconduct. Applicant informed the least favorable character of service possible was as u nder other than honorable conditions .

030206 :  Applicant advised of rights and having elected not to consult, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

030206 :  Commanding Officer, 3d Battalion, 3d Marines, 3d Marine Division (-) (REIN), MCBH, Kaneohe Bay, HI , via Commanding Officer, 3d Marines recommended to Commanding General, Marine Corps Base Hawaii , Applicant ’s discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct . The factual basis for this recommendation was his numerous violations of the UCMJ, to include consuming alcohol under the legal drinking age (four specifications), assaulted another Marine by striking him with a Gerber, unauthorized absence, wrongfully used provoking words towards another Marine, wrongfully not reporting to the Company office, fell out of a morning platoon run because the night before Applicant consumed alcohol under the legal drinking age, as supported by three page 11 entries, four nonjudicial punishments and SCM conviction on 021227. Commanding Officer’s comments: “ The respondent’s actions clearly indicate unsuitability for future military service; therefore, I recommend that the respondent be expeditiously discharged .”
030224 :  SJA review determined the case sufficient in law and fact.

 030226 :  GCMCA, Commanding General, Marine Corps Base Hawaii , directed the Applicant 's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

030226:  Commanding General, Marine Corps Base Hawaii, letter to Applicant. Subject: DEBARMENT FROM MARINE CORPS BASE HAWAII. The Applicant is prohibited from entering the installations designated as Marine Corps Base Hawaii, indefinitely, effective the date of this letter.
.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030227 by reason of misconduct due to a pattern of misconduct (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 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 2 retention warnings and 4 nonjudicial punishment proceedings for violations of Articles 86 (unauthorized absence), 92 (4 specifications of failure to obey order, regulation), 117 (provoking speech, gestures) and 128 (2 specifications, assault) of the UCMJ. Violations of UCMJ Article 92 and 128 are considered serious offenses for which a punitive discharge is authorized if adjudged by 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.

The Applicant’s representative submitted an issue of equity as it pertains to post service. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, 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 the civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question. Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review, is considered. In his issues’ statement the Applicant refers to having “only one incident” since discharge and that he completed the “required probation.” Further, the Applicant’s Representative states that the Applicant has submitted 1 additional document attesting to his post-service character but the record shows that the only document that the Applicant provided is a copy of his DD Form 214. 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, and certification of his involvement with civil authorities. The Board determined that the documentation provided by the Applicant did not 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 P1900.16F), effective 01 Sep 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 92 (Failure to obey order, regulation) and 128 (Assault) .

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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