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USMC | DRB | 2006_Marine | MD0600530
Original file (MD0600530.rtf) Auto-classification: Denied


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
 DISCHARGE REVIEW
DECISIONAL DOCUMENT
FOR OFFICIAL USE ONLY

ex-Sgt, USMC
Docket No. MD06-00530

Applicant’s Request
The application for discharge review was received on 20060306 . 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 2007010 3 . 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 Honorable Conditions (General) by reason of separation in lieu of trial by court-martial.
The NDRB did note administrative error(s) on the original DD Form 214. Block 18, Remarks, should read: “CONTINUOUS HONORABLE ACTIVE DUTY FROM 840613 UNTIL 880201 ,” and Block 2 4 , Character of Service , should read: “ UNDER HONORABLE CONDITIONS (GENERAL) .” The Commandant, Headquarters USMC, Quantico, VA, will be notified, recommending the DD Form 214 be corrected or reissued, as appropriate.




PART I - ISSUES AND DOCUMENTATION


Decisional Issues
Equity: Misconduct did not warrant separation.
Equity: Misconduct was the result of a medical condition.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (Service 2)
Excerpts from Service Record (6 pgs)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    19830630 - 19840612       COG
         Active: USMC     19840613 - 19880201       HON
Period of Service Under Review :
Date of Enlistment: 19880202              Date of Discharge: 19931027

Length of Service (years, months, days):

 Active: 0 5 0 8 26
         Inactive: None

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

Age at Entry: 2 1
Years Contracted: 6

Education Level: 12                                 AFQT: 65

Highest Rank: Sgt                                    MOS: 0811

Final Enlisted Performance Evaluation Averages (number of marks): Enlisted performance reports were available to the Board for review.

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): Rifle Expert Badge (6 th Award), Sea Service Deployment Ribbon ( with 3 Stars ) , Good Conduct Medal ( with 1 Star ) , (2) Meritorious Mast s , Certificate of Achievement, National Defense Service Medal, Combat Action Ribbon, Southeast Asia Service Medal, Navy Unit Commendation


Character, Narrative Reason, and Authority of Discharge (at time of issuance):
UNDER HONORABLE CONDITIONS (GENERAL)/Conduct triable by courts-martial (request for discharge for the good of the service), authority: MARCORSEPMAN Par. 6419.
Chronological Listing of Significant Service Events :

880202 :  Reenlisted this date for a term of 6 years.
880926:  Counseling: Advised of deficiencies in performance and conduct (Drinking in BEQ’s after having been given a direct order not to), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
890421:  Counseling: Advised of deficiencies in performance and conduct (Art 86 UA not at point of duty 0500/890419 Muster, Art 87 Missing movement-transportation to Schofield barracks.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
901025:  Counseling: Advised of deficiencies in performance and conduct (Lack of judgment and leadership by instigating a situation where another Marine was injured and by not doing what you should have to keep the situation from getting to far ), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
920309:  Counseling: Advised of deficiencies in performance and conduct (Violation of Art 86 UCMJ (UA) from appointed place of duty. Btry formation 0700 Bldg 1656), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
9205 26 :  NJP for violation of UCMJ, Article 86 : SNM was UA 0930, 920516 to 1300, 920516, from B Btry, 1stBN 12thMAR.
Award: Forfeiture of $ 321. 00 pay per month for 1 month, restriction and extra duty for 14 days. Not appealed.
930122:  Applicant assigned to weight control.

 930202:  Counseling: Advised of deficiencies in performance and conduct (Applicant’s room 103, Bldg 1655. Beer bottles thrown on floor, dirty dishes in secretary, female garment hanging of rack, trash can overflowing, pizza crust in secretary, iron left plugged in, TV and other electrical items left on, and wall l ocker left unsecured.), necessary corrective actions explained, sources of assistance provided and discharge warning issued.

930330:  NJP for violation of UCMJ, Article 86: In that Sgt M_ L. C_ (Applicant), did, on board Kaneohe MCAS, on or about 0800, 930311 to 0815, 930311, without authority, fail to go at the prescribed time his appointed place of duty, to wit: SNM was absent from the Battalion formation from 0800, 930311, to on or about 0815, 930311.
 Award: Forfeiture of $332.00 pay per month for 1 month (suspended for 6 months). Not appealed.
930420:  Counseling: Advised of deficiencies in performance and conduct (Applicant being overweight), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
930824 :  Charges preferred for violation of the Uniform Code of Military Justice (UCMJ) Article 86: (2 specifications), Spec 1: In that Sergeant M_ L. C_ (Applicant), U.S. Marine Corps, on or active duty, did, on board Marine Corps Air Station, Kaneohe Bay, Hawaii, at 0530, on or about 930609, without authority fail to go at the time prescribed to his appointed place of duty, to wit: the basketball court on the west side of building #1656 for “B” Battery 1 st Battalion, 12 th Marine s , physical training formation . Spec 2: In that Sergeant M_ L. C_ (Applicant), U.S. Marine Corps, on or active duty, did, on board Marine Corps Air Station, Kaneohe Bay, Hawaii, at 0800, on or about 930609, without authority fail to go at the time prescribed to his appointed place of duty, to wit: the basketball court on the west side of building #1656 for “B” Battery 1 st Battalion, 12 th Marine s , morning formation ; violation of the Uniform Code of Military Justice (UCMJ) Article 123a: (4 specifications), In that Sergeant M_ L. C_ (Applicant), U.S. Marine Corps, on or active duty, did, on board Marine Corps Air Station, Kaneohe Bay, Hawaii, with intent to defraud and for the procurement of lawful currency and/or a thing a value, wrongfully and unlawfully make and utter certain checks then knowing that he did not or would not have sufficient funds in or credit with s uch bank for the payment [total: $122.56] ; violation of the Uniform Code of Military Justice (UCMJ) Article 134: In that Sergeant M_ L. C_, U.S. Marine Corps, on active duty, being indebted to “Hickam AFB NCO Club 2-9813” Hickam, Air Force Base, Hawaii, in the sum of $1.095.90; for alcohol, which amount became due and payable on or about 930209, did at Marine Corps Air Station, Kaneohe Bay, Hawaii, from about 930209 to about 930512, dishonorably fail to pay said debt .

930825 :  Charges referred to special court-martial.
930922 :  Applicant, having consulted with counsel certified under UCMJ Art 27b, requested discharge for the good of the service to escape trial by court- martial. In the request the Applicant noted that his counsel had fully explained the elements of the offenses for which he was charged and that he understood the elements of the offenses. The Applicant admitted he was guilty of Dishonorable Failure to Pay a Deb t and the offenses set forth on the charge sheet for which a punitive discharge is authorized. In particular, the Applicant stated he believe d he was guilty of v iolating Article 134 of the UCMJ.

930928 :  SJA review determined the case sufficient in law and fact.
931025 :  GCMCA, Commander, 1 st Marine Expeditionary Brigade , directed the Applicant's general under honorable conditions discharge by reason of separation in lieu of trial by court-martial .


PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19931027 in lieu of trial by court-martial (A and B) with a service characterization of under honorable conditions (general). 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 contends that his discharge is inequitable because his misconduct did not warrant “the actions taken.” The Board found the Applicant’s issue without merit. An under other than honorable conditions or general 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. In a signed statement, the Applicant requested an administrative discharge in lieu of a trial by court-martial. Applicant consulted with counsel and was fully advised of the implications of his request. The Applicant indicated in the statement that he understood the character of service could be general under honorable conditions. The Applicant stated he understood the elements of the offenses with which he was charged. He admitted he was guilty of violating Article 134 of the UCMJ for failure to pay just debts. The Applicant’s service was otherwise marred by six retention warnings for deficiencies in performance and conduct and nonjudicial punishment proceedings on two occasions for violations of Article 86 of the UCMJ. 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 Marine Corps and falls far short of that required for an upgrade of his characterization of service. Relief is not warranted.

The Applicant contends that his discharge is inequitable because his misconduct was the result of a medical condition. While he may feel that a medical condition was the underlying cause 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.

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 to consider mitigating the misconduct that resulted in the characterization of discharge. 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. Representation at a personal appearance hearing is recommended but not required.


Pertinent Regulation/Law (at time of discharge)

 A. Paragraph 6419, SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16D), effective
27 Jun 89 until 17 Aug 95.

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 123a, uttering checks, etc, with intent to deceive or with insufficient funds or Article 134, dishonorably failing to pay debt.

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 .

E. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs .

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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