DEPARTMENT OF THE NAVY
 NAVAL DISCHARGE REVIEW BOARD (NDRB)
                     DISCHARGE REVIEW
                   DECISIONAL DOCUMENT

FOR OFFICIAL USE ONLY

ex-Cpl, USMC
Docket No. MD05-01357

Applicant’s Request

The application for discharge review was received on 20050809.  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 designated an active duty member as the representative on the DD Form 293.  The Applicant was advised that active duty members do not normally represent Applicants in a case before the Board as it may be prohibited by Title 18, U.S.C., Section 205.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060421.  After a thorough review of the available 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 - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“Not enough evidence in SRB to have been discharged on pattern of misconduct.  Instead of discharge for pregnancy, they got me out on pattern of misconduct.  One of the entries in my SRB was being to emotional.  You just don’t have nonsense problems after 7 ½ years service.  I boxed for the all Marine team and was also PMI.  The VA has reviewed my SRB and suggested this action.”

Applicant’s Remarks:  (Taken from the DD Form 293):  “I would be willing to stand before a board at my expense if necessary.  I can assure you I’m not a or never was a person of misconduct.  I represent the Corp to the best of my ability for 7 ½ years.  Wanted to get out due to pregnancy and this is what I got.  So I would like it changed.”

Documentation

Only the service record book was reviewed.  The Applicant did not provide additional documentation for the Board’s consideration.

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

	Inactive: USMCR (DEP)	19960930 – 19961118		COG
	Active:   USMC 		19961119 – 20001002		HON

Period of Service Under Review:

Date of Enlistment:  20001003		Date of Discharge:  20040323

Length of Service (years, months, days):

Active:    03  05  20  
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  none
	Confinement:		  none

Age at Entry:  22 

Years Contracted:  4 (12 month extension)

Education Level:  11				AFQT:  55

Highest Rank:  Sgt				MOS:  0651

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  NA*		Conduct:  NA*

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  Good Conduct Medal, Sea Service Deployment Ribbon, National Defense Service Medal, Certificate of Appreciation, Rifle Expert Badge, Pistol Marksman Badge.

*Not Available

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:

001003:	Reenlisted this date for a term of 4 years.

020520:	Counseling:  Advised of deficiencies in performance and conduct (Failure to comply with MCO 1740.13A dated 3 Dec 1992 by not providing a Family Care Plan to the command.  [The Applicant was] tasked to provide a plan by 8 May 2002 and subsequently refused to provide one due to personal reasons.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

030725:	Counseling:  Advised of deficiencies in performance and conduct (Repeated displays of unacceptable behavior for an NCO, disregard for use of the proper chain of command specifically, for approaching the executive officer concerning matters that were previously discussed with the lower levels of the chain of command before adequate time was given to handle said matters, failing to maintain proper military bearing and respect by raising [the Applicant’s] voice and going into emotional tantrums while talking with seniors, making false accusations that the command is not concerned with issues surrounding [the Applicant’s] welfare.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

030827:	Counseling:  Advised of deficiencies in performance and conduct (Substantiated case of level III spouse abuse which occurred on 30 June 2003.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

030912:	Counseling:  Advised of deficiencies in performance and conduct (Established pattern of misconduct, specifically, multiple violations of article 92 (disobeying orders), insubordinate conduct, failure to properly utilize the chain of command, substantiated level III spousal abuse, failure to take prescribed medications as directed and driving [the Applicant’s] POV under suspended driving privileges.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

030918:	NJP for violation of UCMJ, Article 91:  Insubordinate conduct towards a staff noncommissioned officer.  In that Sgt B_, did on or about 28 August 2003, was disrespectful towards a commissioned officer, then known by the Marine to be a commissioned officer, who was then in the execution of her officer, by lying to GySgt C_, by saying that her platoon sergeant gave her permission to drive her vehicle.
Violation of UCMJ Article 92: In that Sgt B_ did on or about 28 August 2003, failed to obey a lawful order by operating a POV while under a suspended drivers license to wit: MCBJO P11240.1B.
	Award:  Forfeiture of $460.00 (suspended for 6 months), extra duty for 14 days.  Not appealed.

031017:	NJP for violation of UCMJ, Article 92:  Failure to obey order or regulation.  In that Sgt B_ did on or about 5 October 2003, operate a vehicle while under a suspended drivers permit.
	Award:  Restriction and extra duty for 30 days (30 days restriction and 20 days extra duty suspended for 6 months), reduction to E-4.  Not appealed.

031124:	Forfeiture of pay awarded at NJP on 030918 vacated.

040216:	Applicant reduced to the grade of Lance Corporal effective this date as a result of the Commanding Officer’s approval of a Competency Review Board’s recommendation.

040227:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of pattern of misconduct.  The factual basis for this recommendation was assorted violations of articles of the UCMJ, specifically citing repetitive violations of articles 91 and 92, violating the 6105 counseling dated 12 September 2003, informing [the Applicant] of [her] pattern of misconduct.  Additionally, [the Applicant was] reduced to Lance Corporal as a result of professional incompetence.  The Applicant was advised that the least possible character of service available was under other than honorable conditions.

040227:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.

040228:	Commanding Officer, Marine Wing Communication Squadron 18 recommended to Commanding General, 1st Marine Aircraft Wing, VIA Commanding Officer, Marine Air Control Group 18, Applicant’s discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.  The factual basis for this recommendation was the respondent’s 6105 entry establishing a pattern of misconduct and two subsequent nonjudicial punishments for disrespect to a staff noncommissioned officer and operating a POV with a suspended license.  The respondent also received two 6105 counseling entries for failure to provide family care plan, substantiated level III spousal abuse, unacceptable behavior for an NCO, improper use of the chain of command, improper military bearing and respect, false accusations, and reduction to Lance Corporal due to professional incompetence.  By her action, she is unwilling or unable to conform to expected standards of military service and should be separated.

040316:	GCMCA, Commanding General, 1st Marine Aircraft Wing, directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

Service Record was missing elements of the Summary of Service.
PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20040323 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 available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).  The Board presumed regularity in the conduct of governmental affairs (E).

When a Marine’s service 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 her failure to comply with MCO 1740.13A, repeated displays of unacceptable behavior, spousal abuse, disobeying orders, driving under a suspended license and nonjudicial punishment proceedings for violations of Articles 91 and 92 of the UCMJ.  The Applicant’s violations of Articles 91 and 92 of the UCMJ are considered serious offenses. On 20031124, the Applicant’s previously suspended award at NJP was vacated due to the Applicant’s continued misconduct.  The Applicant’s conduct, which forms the primary basis for determining the character of her service, reflects her willful failure to meet the requirements of her contract with the Marine Corps and falls far short of that required for an upgrade of her characterization of service.  Relief is not warranted.

The Applicant implies that her discharge is improper because there is “not enough evidence” to discharge her on the basis of a pattern of misconduct.  A Marine is eligible for discharge by reason of misconduct due to a pattern of misconduct after the member has had two incidents of conduct which is prejudicial to good order and discipline in the same enlistment provided the member has been counseled per paragraph 6105 of reference (A) prior to the second incident.  The Applicant met the criteria for discharge by reason of misconduct due to a pattern of misconduct.  Relief denied.

The Applicant implies that she should have been discharged for the convenience of the government by reason of pregnancy.  Reference (A) indicates that separations by reason of misconduct take precedence over discharges for other reasons.  Therefore, the Board found the Applicant’s issue without merit.  Relief denied.

The Applicant implies that her discharge should be changed on the basis of equity because she “boxed for the all Marine team” and was a PMI.  Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline.  The evidence of record did not show that the Applicant was either not responsible for her conduct or that she should not be held accountable for her 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.  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 91, insubordination or Article 92, failure to obey order/regulation.
 
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.

E.  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 Directive 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Directive.  You should read Enclosure (5) of the Directive 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 Directive 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