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USMC | DRB | 2006_Marine | MD0600749
Original file (MD0600749.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. MD06-00749

Applicant ’s Request
The application for discharge review was received on 20060509 . 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 2007021 5 . 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 t hat 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 6 , Separation Code, should read: “ HKA1,” and Block 28, Narrative Reason for Separation, should read: “ M ISCONDUCT .” 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 – Family situation

Equity – Minor offenses

Equity – Quality of service

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant ’s DD Form 214 (Service 2)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    19890530 - 19890905       COG
         Active: None
Period of Service Under Review :
Date of Enlistment: 19890906              Date of Discharge: 199 3 0914

Length of Service (years, months, days):

 Active: 04 00 09
         Inactive: None

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

Age at Entry: 18
Years Contracted: 4
Education Level: 12                                 AFQT: 59

Highest Rank: LCpl                                   MOS: 0331 (Machinegunner)
Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.2 ( 11)                               Conduct: 3.0 ( 11 )
Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): Rifle Expert Badge (2d Award), Combat Action Ribbon, Pistol Marksman Badge, Navy Unit Commendation, Southwest Asia Service Medal, Joint Meritorious Unit Award, National Defense Service Medal, Humanitarian Service Medal, Sea Service Deployment Ribbon, Kuwait Liberation Medal


Character, Narrative Reason, and Authority of Discharge (at time of issuance):
UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct-Pattern of misconduct (administrative discharge board required but waived), authority: MARCORSEPMAN Par. 6210.3.
Chronological Listing of Significant Service Events :

900524:  NJP for violation of UCMJ, Article 86: UA (AWOL) from 0001, 900520 from appointed place of duty.
         Award: Forfeiture of $ 182. 00 per month for 1 month, restriction and extra duty for 14 days . Forfeiture suspended for 3 months. Not appealed.
900524:  Counseling: Advised of deficiencies in performance and conduct ( Demonstrated a lack of respect for authority by being absence from a place of duty .), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

 920306:  NJP for violation of UCMJ, Article 134: On or about 920226 uttered to AAFES a certain check in the amount of $150.00 and failed to maintain sufficient funds in the bank for payment.
         Award: Forfeiture of $ 225.00 per month for 1 month, restriction and extra duty for 14 days. Not appealed.
921217:  Counseling: Advised of deficiencies in performance and conduct ( Counseled on 92120 4 , 921208 and 921209 about financial responsibilities ), necessary corrective actions explained, sources of assistance provided.
930225:  Counseling: Advised of deficiencies in performance and conduct ( Suspected physiological disorder .), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
930226:  2/5 BAS Consultation Sheet to Mental Health Clinic.
         Reason for the Request: Multiple stressors involving family life including child abuse and sexual assault. Applicant previously admitted to March AFB for Adjustment Disorders and mixed emotional features.
         Provisional Diagnosis: Adjustment Disorder and mixed emotional features.
930412:  Naval Hospital Camp Pendleton, CA, Mental Health Clinic. Medical Board conducted on the Applicant for a diagnosis of Depressive Disorder NOS. The following physical limitations have been imposed on the Applicant: no deployment, no fieldwork, should not handle weapons. Anticipated disposition: assign 6 months LIMDU.

930527:  NJP for violation of UCMJ, Article 86: On or about 0530 to 1030, 930406 absent from appointed place of duty.
Violation of UCMJ, Article 9 0: On or about 930520 , disobey a lawful order from 2dLt E_ to remain in barracks during the period of 930520 to 930524.
Violation of UCMJ, Article 134 (2 specs):
 Specification 1: On or about 930409 make and utter to LCpl a certain check in the amount of $30.00 and dishonorably failed to maintain sufficient funds in his account.
Specification 2: On or about 930310 make and utter to LCpl a certain check in the amount of $165.00 and dishonorably failed to maintain sufficient funds in his account.
         Award: Forfeiture of $ 456.00 per month for 2 month s , restriction and extra duty for 3 0 days, reduction to E- 2 . Forfeiture of $456.00 suspended 6 months. N ot appealed.

 930615 :  Applicant notified of intended recommendation for discharge as under other than honorable conditions by reason of misconduct due to minor disciplinary infractions, pattern of misconduct, and commission of a serious offense . The factual basis for this recommendation was your three nonjudicial punishments, one evidencing your willful disobedience of a superior commissioned officer and your uttering worthless checks by dishonorably failing to maintain funds. Applicant informed the least favorable character of service possible was under other than honorable conditions.
930618 :  Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.
930625 :  Commanding Officer, 2d Battalion, 5 th Marines, recommended Applicant ’s discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions, pattern of misconduct, and commission of a serious offense .





930630:  NJP for violation of UCMJ, Article 92 (2 specs):
         Specification 1: On or about 930613 willfully violated Area Order P11000.1a by having a female in his BEQ room .
         Specification 2: On or about 930614 willfully violated Area Order P11000.1a by having a female in his BEQ room .
Violation of UCMJ, Article 134 (2 specs):
 Specification 1: On or about 930613 break restrictio n by having a female in his BEQ room.
 Specification 2: On or about 930614 break restriction by having female(s) in his BEQ room .
Violation of UCMJ, Article 107 (2 specs) :
Specification 1: On or about 930621 made a false official statement to L t K.C. T_ .
Specification 2: On or about 1200, 930622 made a false official statement to Cpl T_.
         Award: Forfeiture of $ 407. 00 per month for 2 month s , restriction for 6 0 days, reduction to E- 1 . Appeal 930705. No further information found in service record.

930719:  Applicant signed an unconditional waiver of administrative discharge board.

930817 :  SJA review determined the case sufficient in law and fact for a pattern of misconduct.

930823 :  GCMCA, Commanding General, 1 st Marine Division (Rein), FMF , directed the Applicant 's discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense. The primary basis for separation shall be misconduct due to a pattern of misconduct.



PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19930914 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, supp orting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).

Equity - Family situation: The Applicant contends that the death of his grandmother affected his ability to handle pressure.

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 to ensure that undeserving Marines receive no higher characterization than is due. The NDRB found that the Applicant's service was equitably characterized. Relief denied.

Equity – Minor offenses: The Applicant states that he had 2 office hours for being late for firewatch and for writing a bad check.
Equity – Quality of service: The Applicant states that he was a decorated Marine.
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 2 retention warnings and 4 nonjudicial punishment proceedings for violations of Articles 86 (UA, 2 specs), 90 (willfully disobeying superior commissioned officer ), 92 ( failure to obey order, regulation), 107 (false official statement ), 134 (check, worthless, making and uttering-by dishonorably failing to maintain funds, 3 specs) and 134 (restriction, breaking, 2 specs) of the UCMJ. Violations of UCMJ Articles 90, 92, 107 and 134 (checks) are considered serious violations 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.




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 90 (willfully disobeying superior commissioned officer), 92 (failure to obey order, regulation), 107 (false official statement), and 134 (check, worthless, making and uttering-by dishonorably failing to maintain funds).

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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