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USMC | DRB | 2006_Marine | MD0600759
Original file (MD0600759.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. MD06-00759

Applicant’s Request
The application for discharge review was received on 20060511 . 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 20070308 . 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 Under Other Than Honorable Conditions by reason of misconduct due to a pattern of misconduct.


PART I - ISSUES AND DOCUMENTATION

Decisional Issues
EQUITY – Applicant was used as an example to others.
EQUITY – Post-service conduct.
 PR OPRIETY – Applicant was not guilty of specific violations for which he was awarded punishment.

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (Member 4)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    20010131 - 20010225       COG
          Active: None
Period of Service Under Review :
Date of Enlistment: 20010226              Date of Discharge: 20021122

Length of Service (years, months, days):

 Active: 0 1 08 27 (Does not exclude lost time )
         Inactive: None

 Time Lost During This Period :
         Unauthorized absence: 77 day s
         Confinement:              None

Age at Entry: 20

Years Contracted: 4

Education Level: GED                                 AFQT: 79

Highest Rank: PFC                                             MOS: 0351

Final Enlisted Performance Evaluation Averages :
Proficiency: 3 . 5 *                                             Conduct: 2 . 9 *

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): Rifle Marksman Badge, National Defense Service Medal

*Extrac ted from Commanding Officer ltr dtd 020906


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 :

020605:  NJP for violation of UCMJ, Article 86:
 Specification: In that PFC R_ (Applicant), did on or about 0700, 011221, w/o authority, absent himself from his place of duty at which he was required to be, to wit: Weapons Co, 2 nd Bn, 4 th Marines, and did remain so absent until his return, on or about 1430, 020125. In that PFC R_, did on or about 0700, 020204, w/o authority, absent himself from place of duty at which he was required to be, to wit: Weapons Co., 2 nd Bn, 4 th Marines, and did remain so absent until his return, on or about 0130, 020319.
         Award: Forfeiture of $511.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-1. Not appealed.
020605:  Counseling: Advised of deficiencies in performance and conduct ( u nauthorized absence), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
020823:  Counseling: Advised of deficiencies in performance and conduct (Assault, disrespect), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
020826:  NJP for violation of UCMJ, Article 91:
          Specification: In that, Private R_ (Applicant), on activity, did, onboard Camp Hansen, Okinawa, Japan, “Palms Club” on or about 020818 , was disrespectful in language toward GySgt P_ and MSgt D_, then known by the said Pvt R_ to be Superior Staff Non-Commissioned Officers, who was in the execution of there office, by saying “---- both of you, you are nothing but a bunch of -------”.
          Violation of UCMJ, Article 128: In that, Private R_ (Applicant), on activity, did, onboard Camp Hansen, Okinawa, Japan, “Palms Club” on or about 020818 , assault GySgt P_, who was then known by the accused to be a Staff Non-Commissioned Officer, by grabbing the necktie and wrapping it around his hand and pulling downward choking GySgt P_.
 Award: Forfeiture of $522.00 pay per month for 2 months, restriction and extra duty for 45 days. Not appealed.
020830:  Com mandin g Officer, Weapons Company , recommended that the Applicant be discharged under other than honorable conditions by reason of misconduct due to pattern of misconduct. The Company Commander’s letter also shows the Applicant was issued a citation for public drunkenness by the Oceanside Police Department [date of citation unknown.]

020902:  Counseling: Applicant a dvised he was being recommended for separation by reason of m isconduct due to a pattern of misconduct by the Weapons Company Commander.

020906 :  Applicant notified of intended recommendation for separation with a general (under honorable conditions) characterization 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 .

020906:  Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

020906:  Commanding Officer, Battalion Landing Team 2/4 , recommended that the Applicant be discharged with a general under honorable conditions characterization . Commanding Officer’s comments: “ 020822 Private R_ (Applicant), was found guilty at Battalion-level non-judicial punishment for violation of Article 91 by being disrespectful in language towards a Gunnery Sergeant and M aster Sergeant and Article 128 by assaulting a Gunnery Sergeant. 020605 Private R_ was found guilty at Battalion-level non-judicial punishment for violation of Article 86, unauthorized absence. Private R_ has an established pattern of misconduct that is prejudicial to good order and discipline. In conclusion, it is in the best interest of the Marine and the United States Marine Corps that Private R_ be administratively separated. I have read [Applicant’s] statement and personally interviewed him. Based on the interview I believe that it is in the best interest to separate [Applicant.] [Applicant] is not a bad person, he has had a tough life up to this point and he has set some goals for himself that will ultimately allow him to succeed in life. ”
021017:  Commanding Officer, 31 st Marine Expeditionary Unit, recommended that the Applicant be discharged under other than honorable conditions by reason of misconduct due to pattern of misconduct.

021024 :  SJA review determined the case sufficient in law and fact.
021104 :  Commanding General, III Marine Expeditionary Force , directed the Applicant's discharge under other than honorable conditions by reason of convenience of the government due to a pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20021122 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).

The Applicant implies that his discharge characterization is inequitable because he was just used as an example to other Marines. 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 nonjudicial punishment proceedings for violations of Articles 86, 91 and 128 of the UCMJ. Each one of the Applicant’s violations of Articles 86, 91 and 128 of the UCMJ is the commission of a serious offense. The Applicant went to unauthorized absence on two occasions, each of which was greater than 30 days. The evidence of record did not show that the Applicant’s characterization was the result of him being made an example. Neither did the evidence of record show that he was either not responsible for his conduct or that he should not be held accountable for his actions. 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 Marine Corps and falls far short of that required for an upgrade of his characterization of service. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Relief is not warranted.

The Applicant implies that his discharge is improper because he did not know the ranks of the individuals which he assaulted. Additionally, the Applicant contends that he was merely defending himself. The evidence of record shows that the Applicant was awarded nonjudicial punishment for violating Articles 91 and 128 of the UCMJ. The evidence of record also shows that the Applicant did not appeal his nonjudicial punishment. The documentation and statements provided by the Applicant were not sufficient to overturn the presumption that the Applicant violated the Articles of the UCMJ for which he was awarded punishment on 20020826. Relief on this basis is not warranted.

The Applicant implies that his discharge is inequitable due to his post-service conduct. Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question. The Board discovered no impropriety after a review of Applicant’s case. 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 Naval service. The NDRB 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. Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service and certification of non-involvement with civil authorities. As of this time, the Applicant has not provided any post-service documentation to consider mitigating the misconduct that resulted in the characterization of discharge. 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. 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 86, unauthorize d absence for more than 30 days, Article 91, insubordinate conduct or Article 128, assault.

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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