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USMC | DRB | 2006_Marine | MD0601154
Original file (MD0601154.rtf) Auto-classification: Denied

ex-PVT, USMC
MD06-01154

 Current Discharge and Applicant’s Request :

Application Received:                               20 060905      
Characterization of Service:                      
Narrative Reason for Separation:                           MISCONDUCT
Discharge Authority :                                MARCORSEPMAN PAR 6210.6
Last Duty Assignment/ Command at Discharge:       HQCO 5THMAR 1STMARDIV CAMPEN CA

Applicant’s Request:    
         Characterization change to:              
         Narrative Reason change to:              
         Review Requested:                         
Representation:                                             


Decision:
Date of Decision:                                            20070719
Location of Board:                                  Washington D.C.
Complete Service Record:                                    YES
Complete Medical Record:                           YES
Complete Discharge Package:                        YES

Regarding propriety, the Board found the discharge:      PROPER
Regarding equity, the Board found the discharge:         EQUITABLE

By a vote of 5-0 the Characterization shall remain UNDER OTHER THAN HONORABLE CONDITIONS         
By a vote of 5-0 the Narrative Reason shall remain MISCONDUCT


Applicant’s Issues, as summarized by the Board:
 1. Youth and immaturity caused my actions.
2. Should have been discharged for a mental disorder.


Summary of Service:

Prior Service:
 Inactive: USMCR (DEP)                               20021126-20030616

Period of Service Under Review:
 Date of Enlistment:                                 20030617      
Years Contracted :                                   ; Extension:
Date of Discharge:                                  20051007
Length of Service
         Active:                                      01 Yrs 11 Mths 17 D ys (Does not exclude lost time)

Time Lost During This Period:                      101
 Days UA:                                             66
 Days Confinement:                                   35
        
Education Level:                                   
Age at this Enlistment:                                    
AFQT:                                                 31
MOS:                                                  0621
Highest Rank:                                       

Proficiency/Conduct marks (# of occasions):               4.2 (5) / 4.2 (5)

Awards and Decorations (as listed on the DD Form 214):   GLOBAR WAR ON TERRORISM SERVICE MEDAL, NATIONAL DEFENSE SERVICE MEDAL







Service Record Entries Related to Characterization of Service or Narrative Reason for Separation

20050402:        Applicant to unauthorized status.

20050502:        Applicant declared a deserter.

20050608:        Applicant from unauthorized status (surrendered).

20050608:        Applicant to pre-trial confinement.

20050712:        Applicant from pre-trial confinement.

 20050715 :        Summary Court-Martial.
         Charge I : V iolation of the UCMJ, Article 86 .
          Specification: Did on or about 20050414, without authority, absent himself from his unit, to wit: HQ Co 5 th Marine Division, located at Camp Pendleton, and did remain so absent until 20050608 . Plea : Guilty. Findings : Guilty.
.         Charge II: Violation of the UCMJ, Article 92 (4 specifications).
         Specification 1: Did on or about 20050302, violate a lawful general order, to wit: paragraph 2401.1 of B ase O rder P 500.2 J, wrongfully aiding, abetting, or commanding PFC T_ J. S_ to operate a motor vehicle aboard base without a valid state operator’s license . Plea : Guilty. Findings : Guilty.
         Specification 2: Did on or about 20050302, violate a lawful general order, to wit: paragraph 2006.6 of B ase O rder P 5000.2 J , wrongfully transporting within a motor vehicle a weapon, to wit: Colt .357 Magnum pistol, while loaded w/ammunition and not locked in the vehicle’s trunk or in a locked container. . Plea : Not Guilty. Findings : Not Guilty.
          Specification 3: Did on or about 20050302, violate a lawful general order, to wit: paragraph 2006.6 of B ase O rder P 5000.2 J , wrongfully transporting within a motor vehicle a weapon, to wit: a Crossman air-gun pistol while not locked in the vehicle’s trunk or in a locked container. Plea : Not Guilty. Findings : Not Guilty.
          Specification 4: Did on or about 20050302, violate a lawful order, to wit: paragraph 2006.1 C of B ase O rder P 500 0 .2 J , failing to register (2) knives w/blades over 6 inches in length at the police station. . Plea : Not Guilty. Findings : Not Guilty.
          Charge III: Violation of the UCMJ, Article 134: Did on or about 20050302, unlawfully carry on or about his person a concealed weapon, to wit: a C olt P ython .357 magnum pistol and a . 45 replica pellet gun . Plea : Guilty. Findings : Guilty.
          Sentence: Forfeiture of $823.00, restriction for 30 days, reduction to E-1.
          CA action 20050802: Sentence approved and ordered executed.

 20050802:        Counseling: Advised of deficiencies in performance and conduct . Unauthorized absence, noncompliance with procedural rules, and failure to obey orders . N ecessary corrective actions explained, sources of assistance provided, and advised being processed for administrative discharge action.
20050921:        Commanding General, 1 st Marine Division bar order to Applicant from Camp Pendleton.


Elements of Discharge: [ IN VOLUNTARY]

Date Notified:                                       20050823
Basis for Discharge:                               
                          
Least Favorable Characterization:                         
Commanding Officer’s Intended Recommendation:   
Record Supports Narrative Reason:                          YES

Date Applicant Responded to Notification:                 20050823
Consult with Counsel                               
Obtain Copies                                      
Submit Statement(s) (date)                                 
Administrative Board                                WAIVED

Commanding Officer Recommendation (date):        ( 20050823 )
 SJA review (date):                                  ( 20050920 )
Separation Authority (date):                       COMMANDING GENERAL, 1 ST MARINE DIVISION ( 20050921 )
 Narrative Reason directed:                                  MISCONDUCT DUE TO
Characterization directed:                                 
Date Applicant Discharged:                         20051007


Additional Information Considered by Board

 Type of d ocumentation submitted by t he Applicant and considered by the Board
        Document Type                                        #Pages
 Related to Period of Service Under Review :
         Service/Medical Record :                              11/7      
         Other Period of Service:                                    0      
Related to Post-Service Period:
          Community Service :                                   0      
         Education :                                           0      
         Employment :                                          0      
         Health /Medical :                                       0      
         Character Statements:                               0      
         Criminal Records Checks:                                    0      
         Additional Statements from Applicant:             0      
Other Documentation (Describe Below)                      0      

Total Number of Pages:                              18      


Applicant’s Issues, as summarized by the Board:
 1. Youth and immaturity caused my actions.
2. Should have been discharged for a mental disorder.
Decisional Issues:
 The Board accepted Issues 1-2 for consideration.

Issue 1 (Equity). The Applicant contends that his problems were attributed to his immaturity. While he may feel that this was 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. When a Marine’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions. 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 a guilty plea and finding at a Summary Court Martial for Article 86 (over 30 days), Article 92 and Article 134. Violations of UCMJ Articles 86, unauthorized absence over 30 days, 92, Failure to obey order, regulation, and 134, are considered serious offenses for which a punitive discharge is authorized if adjudged by a Special or General Courts Martial. An upgrade to general (under honorable conditions) would be inappropriate. Relief denied

 Issue 2 (Equity). The documentation and statements provided by the Applicant were not sufficient to overturn the presumption that the Applicant was properly diagnosed as fit for full duty and returned to his command on 20040728. The evidence reviewed did not persuade the Board that this diagnosis was responsible for his actions, Summary Court Martial, or subsequent administrative separation . Administrative procedures were proper and equitable. Relief denied.

In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Service Record Entries, Medical Record Entries, Elements of Discharge and evidence submitted by the Applicant, the Board found the Applicant’s discharge proper and equitable.


Minority Opinion

 None


Pertinent Regulation/Law

 A. Paragraph 6210, MISCONDUCT , of the Marine Corps Separation and Retirement Manual, ( MCO P1900.16F), effective
1 September 2001 - Present.
B. 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 V, Para 502, Propriety and Para 503, Equity.

 C. 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 violations of the UCMJ, Article 86, Unauthorized absence over 30 days, 92, Failure to obey order, regulation and Article 134, Carrying concealed weapon..





ADDENDUM: Information for the Applicant
Complaint Procedures : 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 . ”

Additional Reviews : Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the 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. If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

Service Benefits: The Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board. There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.

Employmen t / Educational Opportunities : The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.

Reenlistment/RE-code: Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to change a reenlistment code. Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities. An unfavorable “RE” code is, in itself, not a bar to reenlistment. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.
Medical Conditions and Misconduct : DoD disability regulations do not preclude a disciplinary separation. Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons. Whenever a member is being processed through the Physical Evaluation Board, and subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended. The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings. If the action includes either a punitive or administrative discharge for misconduct, the medical board report is filed in the member’s terminated health record. Additionally, the NDRB does not have the authority to change a narrative reason for separation to one indicating a medical disability or “PTSD.” Only the Board for Correction of Naval Records can grant this type of narrative reason change.

Automatic Upgrades - 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 may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.

Issues Concerning Bad-Conduct Discharges (BCD ) – Because relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts, issues relating to the Applicant’s innocence of charges for which he was found guilty cannot form a basis for relief. With respect to a discharge adjudged by a court-martial, the action of the NDRB is restricted to upgrades based on clemency. Clemency is an act of leniency that reduces the severity of the punishment imposed.

Board Membership: 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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