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USMC | DRB | 2006_Marine | MD0600751
Original file (MD0600751.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. MD06-00751

Applicant’s Request
The application for discharge review was received on 20060512 . 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 20070301 . 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 a pattern of misconduct.





PART I - ISSUES AND DOCUMENTATION

Decisional Issues

         Equity: Post service.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Letter from Applicant, dtd March 15, 2006
Applicant’s DD Form 214 (Member 4)
Applicant’s DD Form 214 (Member 1)
Applicant’s DD Form 215 (Member 4)
Applicant’s DD Form 215 (Member 1)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    19980817 - 19990815       COG
          Active: None
Period of Service Under Review :
Date of Enlistment: 19990816              Date of Discharge: 20021205

Length of Service (years, months, days):

 Active: 0 3 0 3 2 0
         Inactive: None

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

Age at Entry: 1 8

Years Contracted: 4

Education Level: 12                                 AFQT: 36

Highest Rank: L C pl                                   MOS: 3381 (Food Service Specialist)

Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4 . 2 ( 9 )                        Conduct: 4 . 2 ( 9 )
Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): National Defense Service Medal, Meritorious Mast (2) .


Character, Narrative Reason, and Authority of Discharge (at time of issuance):
GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: MARCORSEPMAN Par. 6210.3.
Chronological Listing of Significant Service Events :

020110:  Counseling: Advised of deficiencies in performance and conduct (Failed to sign out in the liberty logbook prior to departing Camp Wilson area and also failed to return to Camp Wilson area at 2230, that evening. In fact, you did not return until 0730 on 010904.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

020123:  Counseling: Advised of deficiencies in performance and conduct (Unauthorized absence and failure to obey orders. Specifically, you went on convalescent leave without filling out and signing leave papers.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
0 20227 :  Commanding Officer, Naval Hospital, Cherry Point : Applicant was evaluated at the Psychological Department and has been found to have the following diagnoses:
         AXIS I: Occupational problem .
         AXIS II: Borderline Personality Disorder with Antisocial traits .
         As noted in the previous evaluation dated 21 February 2002, this service member has a long-standing disorder of character and behavior that is of such severity as to interfere with serving adequately in the military. In the examiner’s opinion, the patient does not possess a severe mental disease or defect for purposes of R.C.M.706 examinations and is considered component. While not imminently suicidal or homicidal, this service member is at risk to harm self or others and should be separated as soon as possible. It is strongly recommended that a 6105 entry be waived.

02031 1 :  NJP for violation of UCMJ, Article 91 (2 Specifications) : D isrespect in language toward a non-commissioned officer.
 Violation of UCMJ, Article 117 : W rongfully use provoking words .
 Violation of UCMJ, Article 128: A ssault Sgt H_ by striking him with a closed fist in the face and back.
         Award: Restriction for 60 days, reduction to E-2. Appealed 020311. Appeal denied 020402.

020607:  NJP for violation of UCMJ, Article 91: Disobey a lawful order from SSgt H_, to halt, on or about 1745, 020521 at MCAS, CHERPT Messhall.
 Violation of UCMJ Article 92 : Violate a lawful regulation, to wit: MCO P1020.34F, unlawful body piercing .
          Award: R estriction for 6 0 days, reduction to E- 1 . A ppealed 020612 . Appeal denied 020618.

0 20625 :  Applicant notified of intended recommendation for discharge as under other than honorable conditions by reason of convenience of the government due to a personality disorder and misconduct due to a pattern of misconduct . The factual basis for this recommendation was Doctor J. A. B_’s letter 6300 Code 53 of 27 February 2002, your page 11 entries, and your non-judicial punishment . Applicant informed the least favorable character of service was under other than honorable conditions .
020625 :  Applicant advised of rights and having elected not to consult with counsel, elected to appear before an Administrative Discharge Board.
0 20625 :  Commanding Officer , Headquarters and Headquarters Squadron, recommended Applicant’s discharge under other than honorable conditions by reason of convenience of the government due to personality disorder and misconduct due to pattern of misconduct .
020924:  An Administrative Discharge Board, based upon a preponderance of the evidence and by majority vote, found that the Applicant had committed pattern of misconduct, that such misconduct warranted separation, and recommended discharge with a general (under honorable conditions).

Unreadable:      Commanding Officer, Headquarters and Headquarters Squadron, concurred with the board’s findings and recommendations.

 021119 :  Commander, Marine Corps Air Base s , Eastern Area , directed the Applicant's discharge with a general (under honorable conditions) by reason of misconduct pattern of misconduct .

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20021205 by reason of misconduct due to a pattern of misconduct (A ) 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 ( B and C ). The Board presumed regularity in the conduct of governmental affairs ( D ).
When a member’s service has been honest and faithful, it is appropriate to characterize that service as honorable. Characterization of service as general (under honorable conditions) 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. There is irrefutable evidence that the Applicant’s conduct during his time in the service was not honorable. Indeed, the Applicant’s records contain:
•         Retention warning entry on 20020110 for deficiencies in performance and conduct concerning your failure to sign out in the liberty logbook;
•         Retention warning entry on 20020123 for deficiencies in performance and conduct concerning unauthorized absence and failure to obey orders;
•         Nonjudicial punishment proceedings on 20020311 for violation of UCMJ Article 91 (2 specifications) Contempt, disrespect toward noncommissioned officers, Article 117 Provoking speech, and Article 128 Assault; and
•         Nonjudicial punishment proceedings on 20020607 for violation of UCMJ Article 91 Willfully disobeying and Article 92 Failure to obey regulation.
 The Applicant’s conduct, which forms the primary basis for determining the character of his service, falls well below that required for an honorable characterization of service. Relief denied.

Equity – Post service: The Applicant informs the Board that he is a college graduate and an accomplished chef. While 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 civilian life subsequent to leaving service, the Board is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review. Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge. Evidence of continuing educational pursuits, verifiable employment records, documented community service, and certification of non-involvement with civil authorities are examples of documentation that should have been provided to receive consideration for relief based on post-service conduct. At this time, the Board found that the Applicant’s statements concerning post-service conduct, without documented evidence, do not mitigate the misconduct, which precipitated discharge. No relief is granted on this basis.

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 P1900.16F), effective 01 Sep 2001 until Present.

B . Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety .

C . Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity .

D . 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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