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USMC | DRB | 2006_Marine | MD0600581
Original file (MD0600581.rtf) Auto-classification: Denied


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

ex-PFC, USMC
Docket No. MD06-00581

Applicant’s Request
The application for discharge review was received on 20060320 . 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 ization of the discharge shall not change. The discharge shall remain Unde r Honorable Conditions (General) by reason of misconduct due to minor disciplinary infractions .
The NDRB did note administrative errors on the original DD Form 214. Block 2 4 , Character of Service , should read: “ UNDER HONORABLE CONDITIONS (GENERAL) ” and Block 12c, Net Active Service This Period, should read: “03 06 13. ” 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 :

No issues were submitted by the Applicant.
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    19890215 - 19890305       COG
          Active: None
Period of Service Under Review :
Date of Enlistment: 19890306              Date of Discharge: 19920918

Length of Service (years, months, days):

 Active: 0 3 0 6 0 4
         Inactive: None

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

Age at Entry: 1 9

Years Contracted: 4

Education Level: 12                                 AFQT: 64

Highest Rank: LCpl                                   MOS: 0847

Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4 .3 ( 9 )                        Conduct: 4 .0 ( 9 )
Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): Rifle Sharpshooter Badge, National Defense Service Medal, Combat Action Ribbon with 2 stars, Southwest Asia Service Medal .


Character, Narrative Reason, and Authority of Discharge (at time of issuance):
UNDER HONORABLE CONDITIONS (GENERAL)/Misconduct - Minor disciplinary infractions (administrative discharge board required but waived), authority: MARCORSEPMAN Par. 6210.2.
Chronological Listing of Significant Service Events :

890215:  CG WRR level waiver approved.
911105:  Counseling: Advised of deficiencies in performance and conduct (involvement with civilian authorities in relation to an alcohol related incident.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
911115:  NJP for violation of UCMJ, Article 92: At CamPen, disobedience of a lawful order by wearing a n earring on or about 2330, 91101.
         Award: Forfeiture of $ 150. 00 pay per month for 1 month, restriction for 7 days (suspended for 3 months), extra duty for 14 days. Not appealed.
911219:  Punishment imposed and suspended on 911115 for a period of 3 mos is hereby vacated and the punishment is ordered executed this date.
911219 :  NJP for violation of UCMJ, Article 91 : At approximately 2100, 911214, was disrespectful toward SSgt H. G. D_ III.
Award: Forfeiture of $ 2 00 .0 0 per month for 1 month, restriction and extra duty for 14 days. Not appealed.

920xxx:  Counseling: Advised of deficiencies in performance and conduct (financial irresponsibility.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
9204 22 :  NJP for violation of UCMJ, Article 86: UA (AWOL) from 0400, 920407 to 0930, 920407 morning formation at Bldg 488.
 Violation of UCMJ Article 91: Insubordinate conduct toward a noncommissioned officer.
Violation of UCMJ Article 92: Disobedience of a lawful order.
         Award: Forfeiture of $400.00 pay per month for 2 months, restriction for 30 days, reduction to E-2. Not appealed.
920602 :  Counseling: Advised of deficiencies in performance and conduct ( frequent misconduct ), necessary corrective actions explained, sources of assistance provided, and advised being processed for administrative discharge action.

920625 :  Applicant notified of intended recommendation for discharge by reason of misconduct due to minor disciplinary infractions. Applicant informed the least favorable character of service possible was as under other than honorable conditions. Applicant was advised that the CO intended to recommend characterization of under honorable conditions (general) . The factual basis for this recommendation is [Applicant’s] misconduct due to minor disciplinary infractions. “ You have received three nonjudicial punishments and have been counseled concerning your deficiencies. By your actions and inability to respond to counseling, you have demonstrated that your have no potential for further military service . ”

920707 :  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.

920710 :  Commanding Officer, Headquarter Battery, 12 th Marines recommended Applicant’s discharge with a under honorable conditions (general) by reason of misconduct due to minor disciplinary infractions .

920723 :  SJA review determined the case sufficient in law and fact.
920723 :  GCMCA, Commanding General, 3d Marine Div ision , directed the Applicant's under honorable conditions (general) discharge by reason of misconduct due to minor disciplinary infraction .
920814:  NJP for violation of UCMJ, Article 91: In that on or about 1430, 920805, SNM failed to comply with an order to disclose information to a Warrant Officer.
          Award: Forfeiture of 7 days pay ($203.00) suspended for 6 months, restriction and extra duties for 1 4 days. Not appealed.
9208 26:  NJP for violation of UCMJ, Article 134: In that on or about 0400, 920823, SNM having been restricted to the limits of barracks 217, by the battery commander, did break said restriction.
 Violation of UCMJ Article 92: In that on or about 920823, SNM failed to comply with BO 11240.1, by driving without a valid operator’s permit.
          Award: Forfeiture of $392.00 pay per month for 2 months, restriction for 45 days, reduction to E-1. Not appealed.
920918:  Applicant discharged.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19920918 by reason of misconduct due to minor disciplinary infractions (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 Board presumed regularity in the conduct of governmental affairs (E).
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. A 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. The Applicant’s service was marred by three retention warnings, a vacation hearing, and five nonjudicial punishment proceedings for violations of UCMJ Articles 86 (unauthorized absence), 91 (disrespect and insubordinate conduct), 92 (fail to obey an order or regulation), and 134 (breaking restriction). Violations of Articles 91 and 92 are considered serious offenses for which a punitive discharge is authorized at courts 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 contends his discharge was precipitated by family problems (“a sick mother”). The NDRB recognizes that serving in the U.S. Marine Corps is challenging. Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country. It must be noted that most members of the Marine Corps serve honorably and therefore earn their honorable discharges. In fairness to those members of the Marine Corps, commanders and separation authorities are tasked with ensuring that undeserving Marines receive no higher characterization than is due. The NDRB found that the Applicant's service was equitably characterized. Relief denied.

The Applicant states that he was told that after six months he could have his discharge upgraded. There is no law or regulation that authorizes a discharge to be automatically upgraded after six months. A former service member has 15 years, from the date of discharge, to petition the Board for consideration of an upgrade. The Board does not automatically upgrade a discharge after six months. 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 P1900.16D), 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 s 91 (disrespect and insubordinate conduct) and 92 (fail to obey and order or regulation) .
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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