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USMC | DRB | 2006_Marine | MD0600557
Original file (MD0600557.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. MD06-00557

Applicant’s Request
The application for discharge review was received on 20060314 . 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 20070103 . 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 General (Under Honorable Conditions) by reason of misconduct due to the commission of a serious offense.








PART I - ISSUES AND DOCUMENTATION

Decisional Issues :

Equity: Isolated incident
Documentation:
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (Member 4)
Applicant’s DD Form 214 (Member 1)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    20020403 - 20020714       COG
          Active: None
Period of Service Under Review :
Date of Enlistment: 20020715              Date of Discharge: 20050324

Length of Service (years, months, days):

 Active: 0 2 0 8 1 0 (Does not exclude lost time.)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: None
         Confinement:              16 day s

Age at Entry: 18

Years Contracted: 4

Education Level: 12                                 AFQT: 55

Highest Rank: LCpl                                   MOS: 1391 (Bulk Fuel Specialist)

Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4 . 1 ( 6 )                        Conduct: 4 . 1 ( 6 )
Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): Global War on Terrorism Service Medal, Global War on Terrorism Expeditionary Medal (Kuwait), Sea Service Deployment Medal, N ational Defense Service Medal, Navy Unit Commendation, Rifle Marksmanship Badge .


Character, Narrative Reason, and Authority of Discharge (at time of issuance):
GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: MARCORSEPMAN Par. 6210.6.
Chronological Listing of Significant Service Events :

050105:  Memorandum of Pretrial Agreement: The accused in a special court-martial, for the good consideration and after consultation with my counsel, I agree to enter a voluntary plea of guilty to the charge and specification listed below at Battalion Commander’s nonjudicial punishment or a summary court-martial, provided the convening authority agrees to withdraw the charge and specification from the pending special court-martial. I further agree to waive my rights to an administrative discharge board, provided the convening authority agrees to withdraw the charge and specifications against me from the pending special court-martial and the convening authority agrees to separate me with a general under honorable conditions discharge. That I will plea as follow:
         Charge             Offense                     Plea
         Charge:  Violation of Article 107         Guilty
         Spec 1:                                               Not Guilty
         Spec 2:                                               Not Guilty
 Spec 3:                                               Guilty
050120 :  Summary Court-Martial.
         Charge: violation of the UCMJ, Article 107 : (2 specifications)
         Specification 1 : False official statement, Pasadena, CA, 040820. Finding: Not Guilty.
         Specification 2: False official statement, Pasadena, CA, 040828. Finding: Guilty.
          Specification 3: False official statement, Pasadena, CA, 040 901. Finding: Not recorded .
Finding: to Charge I and the specification thereunder, guilty.
          Sentence: Forfeiture of $823.00 per month for 1 month, reduced to E-1, confinement for 30 days.
         CA action 050120: The sentence is approved and will be executed.

050120:  To confinement.

 050127 :  Applicant notified of intended recommendation for discharge as general (under honorable conditions) by reason of commission of a serious offense. The factual basis for this recommendation was your violation of Article 107 of the UCMJ. Applicant informed the least favorable character of service possible was general (under honorable conditions).

05020 3 :  Applicant advised of rights and having consulted with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

050205:  From confinement.
050 2 17 :  Commanding Officer recommended Applicant’s discharge with a under general (under honorable conditions) by reason of commission of a serious offense . Commanding Officer’s comments: “ Pvt C_ (Applicant) has lied on numerous occasions to include an attempt for a humanitarian discharge, which led to his summary court-martial for violation of Article 107. He has been a burden to this command since his return from Pasadena, wasting valuable man-hours of superiors and peers because of his need for constant supervision. I strongly recommend that a discharge under general under honorable conditions be awarded.

0 50303 :  SJA review determined the case sufficient in law and fact.
050314 :  Commander, 2d Force Service Support Group , directed the Applicant's general (under honorable conditions) discharge by reason of misconduct due to commission of a serious offense .

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20050324 by reason of misconduct due to the commission of a serious offense (A and B) with a service characterization of general (under 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 Board presumed regularity in the conduct of governmental affairs (E).
Equity – Isolated incident: The Applicant contends that his discharge was “based on one incident in 31 months of service without any other incidents.”

Applicable regulations require that a member’s characterization of service be based upon the member’s total performance of duty and conduct during the current enlistment. However, there are circumstances where conduct or performance of duty reflected by a single adverse incident may form the basis of characterization for a member’s overall service. The incident need not result in formal punishment to be properly used to characterize service. There is credible evidence in the record that the Applicant committed a serious offense. The Applicant was convicted by summary court-martial for violation of UCMJ Article 107 False official statement. Violation of Article 107 is a serious offense for which a punitive discharge is authorized under Appendix 12 of the Manual for Courts-Martial (B) and typically warrants a characterization of service as under other than honorable conditions. The Applicant was properly notified, processed and discharged with a general (under honorable conditions) by reason of misconduct due to commission of a serious offense . Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the U.S. Marine Corps. Therefore, the Board concluded that the Applicant’s discharge was proper and equitable as issued. 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 post-service accomplishments or any other evidence related to the discharge at that time. 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 107 False official statement.
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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