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USMC | DRB | 2006_Marine | MD0600677
Original file (MD0600677.rtf) Auto-classification: Denied


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

ex-LCpl, USMC
Docket No. MD06-00677

Applicant’s Request
The application for discharge review was received on 20060419 . 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 did not designate a representative on the DD Form 293.
Decision

A documentary discharge review was conducted in Washington, D.C. on 20070208 . 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 izaton of the discharge shall not change. The discharge sha ll remain Under Other Than Honorable Conditions by reason of misconduct due to the commission of a serious offense.



PART I - ISSUES AND DOCUMENTATION


Decisional Issues :

Propriety – C ommand Misconduct
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)
 Letter from Applicant, dtd April 13, 2006 (2 pgs)
 Marine Corps Request for Mast Application dtd June 23, 2004 (2 pgs)
Excerpts from Service Record (6 pgs)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    20020205 - 200202 10       COG
          Active: None
Period of Service Under Review :
Date of Enlistment: 200202 11              Date of Discharge: 20050523

Length of Service (years, months, days):

 Active: 0 3 0 3 1 3
         Inactive: None

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

Age at Entry: 20

Years Contracted: 4

Education Level: 12                                 AFQT: 48

Highest Rank: LCpl                                   MOS: 3051 (Warehouse Clerk)

Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: NA*                  Conduct: NA*
Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): Marine Corps Good Conduct Medal, Global War on Terrorism Service Medal, Sea Service Deployment Ribbon, National Defense Service Medal, Navy Meritorious Unit Commendation, Rifle Qualification Badge (Marksman)

*Not Available


Character, Narrative Reason, and Authority of Discharge (at time of issuance):
UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MARCORSEPMAN Par. 6210.6.

 Chronological Listing of Significant Service Events :

020205:  Waiver approved for DDD/FBE.

040526:  Counseling: Advised of deficiencies in performance and conduct (On 040403 you were cited by South Carolina Highway Patrol for violation of the South Carolina ABC Law), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
050213:  Applicant arrested by Beaufort County Highway P atrol. Charged with k idnapping. Bail set at $30 , 00 0 .00.
050304:  Counseling: Advised of deficiencies in performance and conduct (Failed to report to your appointed place of duty, Building 288, Marine Corps Recruit Depot, Paris Island, SC at the prescribed time of 0700 on 050228, 050301 and 050302.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
050412:  NJP for violation of UCMJ, Article 86: UA from appointed place of duty.
 Award: Restriction and extra duty for 14 days (suspended for 6 months). Not appealed.
0 50428 :  Applicant notified of intended recommendation for discharge as under other than honorable conditions by reason of misconduct due to commission of a serious offense (domestic violence incident) and misconduct due to a pattern of misconduct. The factual basis for this recommendation was the serious nature of Private First Class M__’s civilian charges and his multiple violations of the UCMJ.
 Applicant informed the least favorable character of service possible was under other than honorable conditions.

050509 :  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.

050512 :  Commanding Officer, Recruit Training Regiment, MCRD, PI, SC recommended Applicant’s discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense (domestic violence incident) and pattern of misconduct.

050520 :  SJA review determined the case sufficient in law and fact.
050520 :  GCMCA, Commander, Marine Corps Recruit Depot/Eastern Recruiting Region directed the Applicant's discharge under other than honorable conditions) by reason of misconduct due to commission of a serious offense and pattern of misconduct. The primary basis commission of a serious offense .
050520:  Commander, Marine Corps Recruit Depot/Eastern Recruiting Region Persona Non-Grata Letter.

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 20050523 by reason of misconduct due to the commission of a serious offense (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). The Board presumed regularity in the conduct of governmental affairs (E).

In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable. Specifically, the Applicant alleges that he was maltreated by his command and that his discharge was a result of a “personal vendetta” against him. The record, however, contains no evidence of any wrongdoing by the Applicant’s Commanding Officer or anyone else for that matter in the discharge process. The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case. The Applicant has provided no evidence to support his contentions. The Board presumes regularity in the conduct of governmental affairs in the absence of persuasive evidence to the contrary. As such, this Board presumed that Applicant’s discharge was regular in all respects. Relief denied.

The Applicant requested upgrade of his discharge to a general (under honorable conditions) characterization. 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 two retention warnings, a nonjudicial punishment proceedings for a violation of Articles 86 (unauthorized absence), and a charge of kidnapping in Beaufort, South Carolina. Violations of the military’s equivalent charge of kidnapping under UMCJ Article 113 are considered serious offenses for which a punitive discharge is warranted 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 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 P1900.16E), 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 1 13 (k idnapping) .
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 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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