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USMC | DRB | 2006_Marine | MD0600696
Original file (MD0600696.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. MD06-00696

Applicant ’s Request
The application for discharge review was received on 20060426 . The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable and the Narrative Reason for Separation be changed to “ convenience of the government .” 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 of the discharge and the reason for discharge shall not change. The discharge shall remain Under Other Than Honorable Conditions by reason of misconduct due to a pattern of misconduct.





PART I - ISSUES AND DOCUMENTATION


Decisional Issues
Equity – Quality of service
Equity – Characterization does not reflect nature of offenses (isolated or minor)
Equity – Medical problems
Equity – Unable to serve
Equity – Post service


Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Letter from the Applicant , undated
Character Reference ltr from O. B. M_, Jr, Colonel, Retired, U. S. Army, undated
 Applicant ’s DD Form 214 (Service 2)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    20010420 - 20010424       COG
         Active: None
Period of Service Under Review :
Date of Enlistment: 20010425              Date of Discharge: 20031023

Length of Service (years, months, days):

 Active: 0 2 0 5 29 (Does not exclude lost time.)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: None
         Confinement:              17 days

Age at Entry: 20

Years Contracted: 4
Education Level: 12                                 AFQT: 35

Highest Rank: PFC                                    MOS: 1391 (Bulk Fuels Specialist)

Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.1 ( 8 )                                 Conduct: 3.6 ( 8 )
Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): Sea Service Deployment Ribbon (2 Awds), National Defense Service Medal, Meritorious Unit Commendation, Rifle Qualification Badge (Marksman)


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 :

020325:  Counseling: Advised of deficiencies in performance and conduct for an alcohol related incident on 020324. Directed to report to the battalion SACO representative for counseling on alcohol abuse.
020328:  Counseling: Advised of deficiencies in performance and conduct (An alcohol-related incident on 020324. Violation of Article 91 of the UCMJ when you used inappropriate language and were disrespectful towards two noncommissioned officers that were in the execution of their duties.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

020523:  Counseling: Advised of deficiencies in performance and conduct (Unauthorized absence on 020517.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

 020723:  NJP for violation of UCMJ, Article 92: Disobeying lawful order on 020713 by violating MCBJO 1050.3 by going outside the bounds of Camp Hansen.
         Award: Forfeiture of $ 304. 00 per month for 1 month, restriction and extra duty for 14 days. Not appealed.
020816:  Summary Court-Martial.
          Charge I: violation of the UCMJ, Article 81 :
          Specification: On or about 020404, conspire to commit an offense under the UCMJ, to wit: larceny of a wallet, of a value of about 20,000 yen, Japanese currency, containing 5,895 yen, Japanese currency, one d ri ver’s license, two (2) ATM cards issued by Okinawa Bank and K a iho Bank of some value; one house key of a value of about 400 yen, Japanese currency and one Best care of some value.
         Charge II: violation of the UCMJ, Article 121:
         Specification 1: On or about 020404, steal a wallet of a value of about 20,000 yen, Japanese currency, containing 5,895 yen, Japanese currency; one driver’s license.
         Specification 2: ATM cards issued by Okinawa Bank and Kaiho Bank of some value; one house key of a value of about 400 yen, Japanese currency; and one Best card of some value.
         Finding: to Charge and the specifications thereunder, guilty.
          Sentence: Forfeiture of $681.00, confinement for 30 days, reduction to E-1.
         CA action 020821: Sentence approved and ordered executed.

 020816:  Applicant to confinement. [Extracted from DD Form 214 . ]

020901:  Applicant from confinement. [Extracted from DD F orm 214 .]

030121:  NJP for violation of UCMJ, Article 112: Drunk on duty on or about 1730, 021230 was discovered drinking a beverage containing alcohol while on duty as a bulk fuel specialist.
         Award: Forfeiture of $575.00 per month for 2 months, restriction for 45 days and extra duty for 15 days. Forfeiture and extra duty for 15 days suspended for 6 months. Not appealed.

 030121:  Counseling: Advised of deficiencies in performance and conduct (Frequent involvement with military authorities ; conspiracy to commit larceny, disobeying orders, alcohol related incidents, and unauthorized absence), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
0301 30 :  SACC MCAS New River. Counselor Assessment and Recommendation. S creening by SSgt R_ L. P_ II, Substance Abuse Counselor, as a result of ARI, possession of alcohol on duty. Recommendation: Early intervention. Attend unit level AWARE Classes: 030210 at SACC NRAS.
         Amenability to treatment: Good. Potential for further productivity with recommended program of recovery: Good.

030306:  Medical Evaluation at 332 Expeditionary Medical Group, Al Jaber AB, Kuwait by I_ P. B_ III, LtCol, USAF, MC, FS, Board Certified Adult/Geriatric Psychiatrist.
         Diagnosis:
         AXIS I: Occupational problem, rule out ETOH abuse.
         A XIS II: Antisocial traits, rule out PDO.
         AXIS III: None.
         AXIS IV: Deployment stressors.
         AXIS V: Current GAF = 65. Highest GAG in past year = 70.
         Plan: The Applicant has clearly demonstrated a long history of antisocial behavior and can only be expected to continue the same depending on the context and provocation. However, this propensity does not preclude him from responsibilities or his ability to function in this environment. Ultimately, separation from AD would be in the best interest of the USMC and the member but this decision is left to the discretion of his commander.
030311:  Squadron Medical Officer, Marine Wing Support Squadron 272, located at Al Jaber Air Force Clinic . The Applicant was examined by Dr. B_ and diagnosed Applicant with an antisocial personality disorder . It is the opinion of Dr. B_ that it would be i n the best interest of the USMC to separate the Applicant from active duty, but that the decision is left to discretion of his commander.
030331 :  Summary Court-Martial.
          Charge: violation of the UCMJ, Article 86 (3 specs):
         Specification 1 : Absent on or about 0800, 030606 from sandbag working party aboard AHMED Al Jaber Air Base.
         Specification 2: Absent on or about 0620, 030307 to 2145, 030307 from assigned working party aboard AHMED Al Jaber Air Base.
         Specification 3: Absent on or about 1600, 030323 to 2130, 030323 from mess facility aboard AHMED Al Jaber Air Base.
         Finding: to Charges and the specifications thereunder, guilty.
          Sentence: Forfeiture of $767.00, confinement for 30 days.
          CA action 030331 : Sentence approved and ordered executed with the exception of the confinement for 30 days which is suspended for 6 months.
030419:  Commanding Officer, Marine Wing Support Squadron 272 , recommended Applicant ’s discharge under other than honorable conditions due to his pattern of misconduct.

 030420 :  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct . Applicant informed the least favorable character of service possible was as under other than honorable conditions.
030422 :  Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights .

030422 :  Commanding Officer, Marine Wing Support Squadron 272, recommended Applicant ’s discharge other than honorable by reason of pattern of misconduct

031006:  Applicant signed statement of understanding of treatment for substance abuse at a Veterans Administration Medical Center.

 031006 :  SJA review determined the case sufficient in law and fact.

 031006 :  GCMCA, Commander, 2d Marine Aircraft Wing , directed the Applicant 's discharge u nder other than honorable conditions by reason of misconduct due to pattern of misconduct.
031007:  Commander, Marine Corps Air Bases, Eastern Area issues a DEBARMENT ORDER to the Applicant.




PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20031023 by reason of misconduct due to a pattern of misconduct (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).

Equity – Quality of service: The Applicant contends that his upgrade should be upgraded to honorable because during the period of service under review, he earned awards and decorations, was on several Marine Corps teams, and had combat service in Kuwait during Operation Iraqi Freedom.
Equity – Characterization and the nature of the offenses: The Applicant contends that his offenses were isolated or minor.
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 3 retention warnings and 2 nonjudicial punishment proceedings for violations of Articles 92 (failure to obey order, regulation) and 112 (drunk on duty) of the UCMJ. In addition, the Applicant was the subject of 2 summary court martials wherein he found guilty of violations of Articles 81 (conspiracy, to commit larceny), 121 (2 specs, larceny), and 86 (3 specs, unauthorized absence) of the UCMJ. Violations of Articles 81, 92, 112, and 121 are considered serious offenses, for which a punitive discharge is authorized if adjudged by 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.

Equity – Medical problems: The Applicant contends that his psychiatric problems impaired his ability to serve.

The Applicant contends that his problems in the Marine Corps can be attributed to his "psychiatric problems." While he may feel that his “psychiatric problems” were the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service. Om 20030306 the Applicant was examined by a competent medical authority, who diagnosed the Applicant as having an occupational problem but that such problem did not preclude him from responsibilities or his ability to function in this environment. 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.

Equity – Unable to serve: The Applicant states that he tried to serve and wanted to but that he was unable to.

The Applicant stated he tried to serve to the best of his ability, but was unable to do so. The NDRB recognizes that serving in the U.S. Marine Corps is very 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 Marines serve honorably and well and therefore earn honorable discharges. In fairness to those Marines, Commanders and separation authorities are tasked to ensure that undeserving Marines receive no higher characterization than is due. While the NDRB respects the fact that the Applicant tried, his service is equitably characterized as being performed under other than honorable conditions. Relief is not warranted.

Equity – Post service: The Applicant contends that he has been a good citizen since his discharge, with no criminal record and is also a father of twins.

The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, 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 the civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question. Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review, is considered. The Applicant provided one letter of character reference as documentation of post-service accomplishments. The Applicant's efforts need to be more encompassing than those provided. For example, the Applicant could have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, and certification of non-involvement with civil authorities. The Board determined that the documentation provided by the Applicant did not mitigate the misconduct that resulted in the characterization of discharge. Therefore, no relief will be granted.

Narrative Reason – The Applicant requests that the narrative reason for discharge be changed to “convenience of the government”.
The NDRB, under its responsibility to examine the propriety and equity of an Applicant's discharge, will change the reason for discharge if such a change is warranted. The summary of service clearly documents that misconduct due to a pattern of misconduct was the reason the Applicant was discharged. Since no other Narrative Reason for Separation could more clearly describe why the Applicant was discharged, a change would be inappropriate.

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. 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 81 (conspiracy), 92 (failure to obey order, regulation), 112 (drunk on duty), and 121 (larceny).

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 .


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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