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USMC | DRB | 2006_Marine | MD0600847
Original file (MD0600847.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. MD06-00847

Applicant’s Request
The application for discharge review was received on 20060608 . 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 20070329 . 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

Applicant Issues
The Applicant is requesting a discharge characterization upgrade to honorable.

The Applicant claims he was having martial problems which contributed to his 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)
Letter from Applicant, dtd May 11, 2006
 Excerpts from Service Record (7 pgs)
 Letter from T_ H_, Oklahoma Department of Mental Health and Substances Services, dtd May 11, 2006

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         
         Inactive: USMCR (DEP)    20010807 - 20010820       COG
          Active: None
Period of Service Under Review :
Date of Enlistment: 20010821              Date of Discharge: 20050606

Length of Service (years, months, days):

 Active: 0 3 0 9 16 (Does not exclude lost time.)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: None
         Confinement:              6 day s

Age at Entry: 18
Years Contracted: 4

Education Level: 12                                 AFQT: 32

Highest Rank: L C pl                                   MOS: 0311

Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3 . 8 ( 9 )                       Conduct: 3 . 7 ( 9 )

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): Purple Heart, Combat Action Ribbon, Iraq Campaign Medal, Global War on Terrorism Service Medal, Sea Service Deployment Ribbon, Global War on Terrorism Expeditionary Medal, National Defense Service Medal, Presidential Unit Commendation


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 :

020425:  Counseling: Advised of deficiencies in performance and conduct (PFC B_ did on 020425, without authority, absent himself from A Co. morning formation at 62 Area Camp Pendleton, and did remain so until 0800, 020425.), necessary corrective actions explained, sources of assistance provided.
020506:  Counseling: Advised of deficiencies in performance and conduct (Pattern of misconduct for failure to follow regulations, failure to act responsibly, never accepting responsibility for his own actions.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
020625:  NJP for violation of UCMJ, Article 86: Did, on or about 020503 without authority, absent himself from his place of duty at which time he was required to be.
 Violation of UCMJ Article 91: Having received a lawful order from a NCO then known by the said to be a non NCO to have a solid plan on returning to his place of duty the following day on time and in the proper uniform, an order which it was his duty to obey, did willfully disobey the same.
          Award: Forfeiture of $289.00 pay per month for 1 month (suspended for 6 months), restriction and extra duty for 14 days, reduction to E-X. Not appealed.
020718:  Counseling: Advised of deficiencies in performance and conduct (Article 91: In that PFC B_ at First Battalion Fifth Marines, Camp Pendleton, CA, on or about 020731 did disrespect LCpl D_, his acting squad leader, by disobeying and order from LCpl D_ and refusing to train while at the Range 113 MOUT Facility. When questioned by Cpl C_, acting platoon sergeant, PFC B_ stated that he “did not give a f_ . ” and that he wasn’t going to train. When questioned by 2 nd Lt H_, 3 rd platoon commander, PFC B_ reiterated his previous statement. Arrangement were made for PFC B_ to see the Chaplain who was at the Range 131 MOUT Facility, and following this meeting PFC B_ resumed training. ), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
020731:  NJP for violation of UCMJ, Article 90: Having received a lawful command from 2 ND Lt H_ his Plt Commander, “that he don’t give a f_ . ” or word to that effect, did at Las Flores, Mout Training Facility, on or about 1300, 020628 .
 Violation of UCMJ Article 91: On or about 1300, 020628 was disrespectful in language toward his Cpl C_, known by the said to be his Plt Sergeant, who was then at Mout Training Facility at Las Flores by saying to him ”that he don’t give a f_ . ” or words to that effect .
          Award: Forfeiture of $ 289. 00 pay per month for 1 month (suspended) , restriction and extra duty for 14 days. Not appealed.
030513:  NJP for violation of UCMJ, Article 92: On or about 1000, 030502, did fail to obey an order given by his NCOIC, Cpl O_, to wit: stay in the platoon area after the refused to take a shower, an order of which it was his duty to obey, fail to stay in platoon area.
         Award: Forfeiture of $268.00 pay per month for 2 months, restriction and extra duty for 45 days (suspended for 6 months).
0 41229 :  NJP for violation of UCMJ, Article 92 : Did on or about 2130, 041205 fail to obey a lawful order issued by SSgt C_ to remain in the vehicle while SSgt C_ retrieved SNM’s clothing and gear from the house .
         Violation of UCMJ, Article 128 : Did on or about 2130, 041204 threaten B_ B_ by saying “you’re done” and “you’re a dead woman”, then punched two pictures and pushed over the Christmas tree .
 Violation of UCMJ, Article 134 : (5 Specifications), Did on or about 45/ Dec 04, wrongfully communicate to (a) 1 stSgt T_, (b) SSgt C_, (c) CDR R. K. R_, (d) M.K. S_, CIV/RN, and (e) D_ P_ a death threat against his wife, B_ B_ .
         Award: Forfeiture of $ 668. 00 pay per month for 2 month s (suspended for 6 months) , restriction for 14 days, reduction to E- 2 . Not appealed.
041229:  Counseling: Advised of deficiencies in performance and conduct (Non-judicial punishment on 041229 for violation of the UCMJ, specifically, Article 92, 134 (2x) ), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
0 50118 :  NJP for violation of UCMJ, Article 89 : On or about 041229 behave himself with disrespect toward Capt P_, by saying to him “Dumb F_” and “That f_ that put me in the brig ” .
 Violation of UCMJ Article 92 : Failed to obey a lawful order to stay away from Mrs B_ B_’s vehicle on or about 041229 .
Violation of UCMJ Article 109 : On or about 041229, bend the license plate on Mrs B_ B_’s vehicle and attempted to remove the Base decal form the windshield of the same vehicle .
 Violation of UCMJ, Article 134: On or about 041229, wrongfully communicate a threat against his wife, B_ B_, by pointing at his wife saying, “You’re done, you b_.”
         Award: Forfeiture of $ 617. 00 pay per month for 2 month s (suspended for 3 months) , restriction and extra duty for 45 days, reduction to E- 1 . Not appealed.
0 50202 :  Applicant notified of intended recommendation for discharge as under other than honorable conditions by reason of pattern of misconduct . The factual basis for this recommendation was your inability to conform to military standards of discipline and respect . Applicant informed the least favorable character of service possible was as under other than honorable conditions

050202 :  Applicant advised of rights and having elected not to consult with counsel, elected to appear before an Administrative Discharge Board.
050420 :  Commanding Officer recommended Applicant’s discharge under other than honorable conditions by reason of misconduct due to pattern of misconduct .
050510:  Waiver of Administrative Discharge Board.
0 50511 :  SJA review determined the case sufficient in law and fact.
0 50318 :  GCMCA, Commanding General directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct .

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20050606 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 is requesting a discharge characterization upgrade to honorable. When a Marine’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions. Characterization of service as under other than 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. The Applicant’s service was marred by the award of nonjudicial punishment (NJP) on 5 occasions for violations of the Uniform Code of Military Justice (UCMJ). The Applicant’s misconduct included unauthorized absence, willfully disobeying, Disrespect in language towards, Failure to obey order, Assault and wrongfully communicating a threat. The Applicant’s conduct, which form the primary basis for determining the character of his service, reflect his misconduct, and fall below that required for an honorable characterization of service. An upgrade to honorable would be inappropriate. Relief is therefore denied.

The Applicant claims he was having martial problems which contributed to his misconduct. While he may feel that his marital problems were the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service. 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.
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 [ 89 , disrespect towards superior commissioned officer, 90, willfully disobeying, 91, Insubordinate conduct toward, 92, failure to obey order or regulation, 128, Assault and 134, wrongfully communicating a threat ].

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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