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USMC | DRB | 2006_Marine | MD0600543
Original file (MD0600543.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. MD06-00543

Applicant ’s Request
The application for discharge review was received on 20060208 . The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable . The Applicant requested a personal appearance hearing before the Board in the Washington, D.C. Metropolitan area. The Applicant designated the American Legion as the representative on the DD Form 293. The Applicant failed to respond by the deadline date to a letter requiring the Applicant to notify the Naval Discharge Review Board of intention to be present for the requested personal appearance hearing. Therefore, a documentary review was conducted, and the Applicant is not eligible for further review by this Board.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20070329 . 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.
The NDRB did note administrative error(s) on the original DD Form 214. Block 2 4 , Character of Service, should read: “ UNDER OTHER THAN HONORABLE CONDITIONS , ” and Block 28, Narrative Reason for Separation, should read: “MISCONDUCT.” 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: Characterization not warranted by overall service record.
         Misconduct mitigated due to command climate and mistreatment after injury .

Documentation
In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:
Applicant ’s DD Form 214 (Member 4)
Applicant’s statement, dated January 23, 2006
Letter from R. S_, Military Review Boards Representative, American Legion, dated February 15, 2007 (2 pages)
Offence Report and Nonjudicial Punishment Guide, undated (7 pages)
Applicant’s Request Mast, dated January 24, 2005 (3 pages)
Copy of Applicant ’s active duty identification card
Marine Corps Security Force Training Company certificate for calendar year 2004
Certificate of completion of Military Occupational Specialty, dated April 23, 2004
Certificate of completion of Basic Security Guard Course, dated June 22, 2004

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    20021205 - 20030616       COG
         Active: None
Period of Service Under Review :
Date of Enlistment: 20030617              Date of Discharge: 20050131

Length of Service (years, months, days):

 Active: 01 07 15
         Inactive: None

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

Age at Entry: 18
Years Contracted: 4
Education Level: 12                                 AFQT: 53

Highest Rank: PFC                                    MOS: 0311

Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 2.9 (1)*                      Conduct: 2.9 (1)*

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

* Extracted from NJP Summary Sheet dated 040219.


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 :

031031:  Counseling: Advised of deficiencies (Your diagnosed physical condit ion not being a disability, left index finger tendon repair , and any resultant or aggravated condition which interferes with the effective performance of your duties.), necessary corrective actions explained, sources of assistance provided, discharge warning issued.
031219:  Counseling: Advised of deficiencies ( Your diagnosed physical condition not being a disability, Lumbar strain , and any resultant or aggravated condition which interferes with the effective performance of your duties .), necessary corrective actions explained, sources of assistance provided, discharge warning issued.
040114:   Counseling: Advised of deficiencies (Your diagnosed physical condition not being a disability (back pain) and any resultant or aggravated condition which interferes with the effective performance of your duties.), necessary corrective actions explained, sources of assistance provided, discharge warning issued.
040216:  Counseling: Advised of deficiencies in performance and conduct (Violation of Article 89 for disrespect towards a superior commissioned officer.), necessary corrective actions explained, sources of assistance provided, discharge warning issued.
040219:  NJP for violation of UCMJ, Article 89: On or about 1630, 040203, behave himself with disrespect toward Captain F_ .
         Award: Forfeiture of $ 596.00 per month for 2 month s , restriction for 6 0 days, reduction to E- 1 . Forfeiture and restriction for 48 days suspended for 6 months. Not appealed.
040416:  NJP for violation of UCMJ, Article 92 : Violate ScolO 1700.2D on 040404 by dri nk ing under the legal age of 21 years.
         Found not guilty of violation of UCMJ, Article 112, drunk on duty on 040404 at weapons draw.
          Award: Forfeiture of $ 278.00 per month for 1 month, restriction and extra duty for 14 days. Not appealed.
040622:  Briefed on Marine Corps policy regarding hazing, appropriate behavior and duty to report to appropriate authority if observed.
040623:  Joined to 2d FAST Company, Marine Corps Security Force Battalion, Yorktown, VA, for duty.
041013:  Counseling: Advised of deficiencies in performance and conduct (Your NJP on 040218 and 040416.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

 041108 :  NJP for violation of UCMJ, Article 92: Did on 031020 knowingly had a female in bldg 1807 after curfew , did not sign said female in with DNCO.
Violation of UCMJ, Article 128 : Did on 031020 a ssault DNCO rover.
Violation of UCMJ, Article 134 : Did on 031020 consume alcohol under the legal age of 21.
         Award: Forfeiture of $ 596.00 per month for 2 month s , restriction and extra duty for 45 days, reduction to E- 1 . Not appealed.

 041108 :  Counseling: Advised of deficiencies in performance and conduct ( NJP on 040218 and 040416 most recently your NJP held on 041104 for violation of Article 92, 128, 134. ), necessary corrective actions explained, sources of assistance provided, and advised being processed for administrative separation due to pattern of misconduct.

050131 :  DD Form 214: Applicant discharge d under other than honorable conditions by reason of misconduct due a pattern of misconduct, authority: MARCORSEPMAN 6210.3 .

Service Record Book did not contain the Administrative Discharge package.
Service Record was missing elements of the Summary of Service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20050131 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 discha rge was proper and equitable ( B a nd C ). The Board presumed regularity in the conduct of governmental affairs ( D ).
To constitute a pattern of misconduct, a minimum of two incidents occurring within one enlistment is required. There is no requirement that the incidents occur within the same unit. The infractions may be minor or more serious. There must be discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline. The misconduct need not have been the subject of NJP or military or civilian conviction. The incidents of misconduct do not have to be of the same nature. Separation processing may not be initiated until the Marine has been properly counseled. The record clearly demonstrates that the Applicant was properly counseled on two occasions, and had at least three distinct incidents of misconduct. In the absence of the discharge package, the Board presumed regularity in the administering of the notification to the Applicant, his acknowledgment of rights and the decision of the Separation Authority. Regarding characterization of service, when the service of a member of the U.S. Navy 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 for misconduct, and 3 nonjudicial punishment proceedings for violations of Articles 89, 92, 128 and 134 of the UCMJ. 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 Articles 89, 92 and 128 are considered serious offenses and a punitive discharge is authorized if adjudged at 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 Board found no evidence in the record to support the Applicant’s contention of command misconduct or that he was the victim of maltreatment. The Board found no evidence to indicate that the Applicant’s misconduct was in any way related to any injury he may have suffered. The Board noted the following: the Applicant was counseled on the Marine Corps’ policy regarding hazing prior to joining the unit of which he complains; he does not deny committing the misconduct for which he was processed for administrative separation; he waived his administrative board (per the Separation Code on DD 214), thus forgoing an opportunity to present evidence to support his claims; the allegations presented in his request mast involved conduct occurring after he had been administratively processed for separation; and his allegations are unsubstantiated by corroborating evidence. The Board found that the Applicant’s allegations did not overcome the presumption of regularity in this case.

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 .

D . 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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction . You should read Enclosure (5) of the Instruction 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 Instruction 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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