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

FOR OFFICIAL USE ONLY

 ex-PFC, USMC
Docket No. MD05-01458

Applicant’s Request

The application for discharge review was received on 20050830.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance discharge review before a traveling panel.  The Applicant did not designate a representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in Washington, DC at the Washington Navy Yard.  The NDRB also advised the Applicant that the Board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060524.  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 - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“I was discharged on May 21st 2004 for having (3) NJP’s.  The first was for missing a field day formation that I was cleared for by GySgt H_.  A Cpl filed the charges without getting info from me or the GySgt.

The second was for not having insurance on my car.  I loaned my P.O.V. to another Marine and he wrecked it.  It took 3 months to fit it.  During This 3 months it was in a shop, not needing insurance, I cancelled the Policy so I could go with another company.  Upon completion of said repairs I was headed to the insurance company and was T-Boned by a woman in a van who later turned out to be an illegal immigrant fleeing two border patrol vehicles.  No compensation was granted.

The third was for a bottle of Jack Daniels whiskey found in my barracks room.  It did not belong to me however it was in my room.  Therefore I was held responsible.  However neither of my roommates suffered the consequences.  I was the only one.

Thank you for your time.  I hope you find this info to be what you need.

B_ F. O_(Applicant)”

Documentation

Only the service record book and medical record were 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)	20001012 - 20010805	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20010806		Date of Discharge:  20040521

Length of Service (years, months, days):

Active:    02  09  16
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  18

Years Contracted:  4

Education Level:  12				AFQT:  81

Highest Rank:  LCpl				MOS:  5831

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  NA*				Conduct:  2.0 (1)**

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

*Not Available
*Extracted from NAVMC (11)

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:

010806:	Pre-service waiver for drug and weight standards granted.

020714:	Counseling:  Advised of deficiencies in performance and conduct (Art 86 Unauthorized Absence form appointed place of duty at 0530 on 020708 for Sections PT.  This is not the performance level expected of a Marine.  It demonstrates lack of professionalism, leadership, and non-reliance to what is expected of a marine of grade.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

020910:	NJP for violation of UCMJ, Article 86: On or about 16300 27 August 2002 SNM was absent without authority to Wit: Company Field day barracks 2498, and did remain so absent until 2000, 27 August 2002.
Violation of UCMJ, Article 92: On or about 1630 27 August SNM violated GySgt H_’s orders to field day his room, by not field day his appointed room.
	Award:  Forfeiture of 7 days pay.  Total forfeiture $304.00, correctional custody for 7 days without suspension of duty.  Forfeiture suspended for 6 months.  Not appealed.

020910:	Counseling:  Advised of deficiencies in performance and conduct (Company NJP for violation of Art(s) 86/92 of the UCMJ.  On 020827, 1630, was UA from Field Day Formation.  On 020828, failed fielday inspection due (failed to field day room).), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

020923: 	Forfeiture of pay awarded at NJP on 020910 vacated.

021011:	NJP for violation of UCMJ, Article 92: In that SNM did, on or about 2327 020927, fail to obey a lawful order issued by Company Commander to have no further involvement of a discreditable nature with civilian/military authorities, when he was cited by San Diego Sheriff’s for a red light violation and no proof of insurance.
	Award:  Forfeiture of $619 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2.  Forfeiture suspended for 6 months.  Not appealed.

021017:	Acknowledged understanding of eligibility but not recommended for promotion to LCpl due to NJP probationary status will not be eligible for promotion until 030501, unless waived by appropriate authority.  Applicant chose not to make a statement.

030109:	Counseling:  Advised of deficiencies in performance and conduct (Failure to meet Marine Corps Standards for failure to pass the Semi-Annual Physical Fitness Test.  As of 030109, will be assigned to the Company Remedial Physical Conditioning Program.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

030212:	Counseling:  Advised of deficiencies in performance and conduct (Violation of Art(s) 92 of the UCMJ, by possessing 2 AFID Cards.  On 020724, Applicant reported to Applicant’s Company First Sergeant that Applicant had lost Applicant’s AFID Card while surfing, therefore, was allowed to report to Pass and ID to get another one.  During October 2002, Applicant reported to the BEQ Office, 24 Area, and surrendered Applicant’s AFID Card in order to borrow a key to enter Applicant’s BEQ Room.  The BEQ Manager turned in Applicant’s AFID Card to Company First Sergeant on 030212, and stated that Applicant never returned the key and that Applicant is indebted to the BEQ for the purchase price of the key, ($12.50).  During Applicant’s interview with the First Sergeant, Applicant disclosed that Applicant found original ID Card several months ago, but failed to turn one of them in to Pass & ID.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

030215:	Applicant given a 030131 SA Conduct mark of 2.0 due to failing his semi annual PFT.

030905:	Counseling:  Advised of deficiencies in performance and conduct (Insubordinate conduct and disrespect toward a noncommissioned officer.  In that, while receiving instructions during a physical training period, Applicant became belligerent in word and mannerism and ultimately provoked physical contact from a Noncommissioned Officer.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

UNDATED:	Acknowledged understanding of eligibility but not recommended for promotion to Cpl for the 2ND quarter, 04 due to pending SCM.  Applicant chose not to make a statement.

040109:	Acknowledged understanding of eligibility but not recommended for promotion to Cpl for the month of Feb 04 due to Pending Disciplinary Charges/Non-judicial Punishment.  Applicant chose not to make a statement.

040227:	Charges preferred for violations of the Uniform Code of Military Justice (UCMJ) Article 86:  Specification: In that Lance Corporal B_ F. O_(Applicant), U.S. Marine Corps, did, at Camp Pendleton, CA, on or about 15 December 2003, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: Building 22160 at 0530 for morning physical training.  Article 92: Specification 1: In that Lance Corporal B_ F. O_(Applicant), U.S. Marine Corps, on active duty, did, at Camp Pendleton, CA, on or about 11 December 2003, violate a lawful general order, to wit: paragraph 6310.c of Base Order P5000.2J with change 7, dated 30 April 2002, by wrongfully possessing two bottles of liquor in his assigned barracks room.  Specification 2: In that Lance Corporal B_ F. O_(Applicant), U.S. Marine Corps, on active duty, having knowledge of a lawful order issued by Corporal M_ E. L_, U.S. Marine Corps, to put squad bay five on line, an order which was his duty to obey, did, at Camp Pendleton, CA, on or about 2 October 2003, fail to obey the same by wrongfully failing to order the members of squad bay five to get on line.  Specification 3: In that Lance Corporal B_ F. O_(Applicant), U. S. Marine Corps, on active duty, having knowledge of a lawful order issued by Chief Warrant Officer 4 Q. J. M_, U. S. Marine Corps, Commanding Officer, Base Brig, Camp Pendleton, CA, to wit: paragraph 5.b, Camp Pendleton Base Brig Order 1640.15B, dated 7 March 2002, an order which it was his duty to obey, did, at Camp Pendleton, CA, on or about 2 February 2004, fail to obey the same by wrongfully kicking Private C. K. S_, U. S. Marine Corps, in the shin.  Specification 4: In that Lance Corporal B_ F. O_(Applicant), U. S. Marine Corps, on active duty, having knowledge of a lawful order issued by Chief Warrant Officer 4 Q. J. M_, U. S. Marine Corps, Commanding Officer, Base Brig, Camp Pendleton, CA, to wit: paragraph 5.b, Camp Pendleton Base Brig Order 1640.15B, dated 7 March 2002, an order which it was his duty to obey, did, at Camp Pendleton, CA, on or about 5 February 2004, fail to obey the same by wrongfully hitting Private C. K. S_, U. S. Marine Corps, in the chest with a compact disk player.  Specification 5:  In that Lance Corporal B_ F. O_(Applicant), U. S. Marine Corps, on active duty, having knowledge of a lawful order issued by Chief Warrant Officer 4 Q. J. M_, U. S. Marine Corps, Commanding Officer, Base Brig, Camp Pendleton, CA, to wit: paragraph 5.b, Camp Pendleton Base Brig Order 1640.15B, dated 7 March 2002, an order which it was his duty to obey, did, at Camp Pendleton, CA, on or about 4 February 2004, fail to obey the same by wrongfully throwing a roll of toilet paper at the chest of Private R. M. R_, U. S. Marine Corps.  Charge III:  Violation of the UCMJ, Article 113:  Specification: In that Lance Corporal B_ F. O_(Applicant), U. S. Marine Corps, on active duty, on or about 28 September 2003, at Camp Pendleton, CA, being posted as a sentinel at Camp Pendleton Base Brig, Squadbay Five, was found sleeping upon his post.  Charge IV: Violation of the UCMJ, Article 121:  Specification:  In that Lance Corporal B_ F. O_(Applicant), U. S. Marine Corps, on active duty, did, at Camp Pendleton, CA, on or about 7 February 2003, steal hand restraints, labeled “CPBB#2”, military property, of a value less than $500.00, the property of the U. S. Government.  Charge V:  Violation of the UCMJ, Article 128:  Specification 1: In that Lance Corporal B_ F. O_(Applicant), U. S. Marine Corps, on active duty, did, at Camp Pendleton, CA, on or about 2 February 2004, unlawfully kick Private C. K. S_, U. S. Marine Corps, in the shin with his foot.  Specification 2: In that Lance Corporal B_ F. O_(Applicant), U. S. Marine Corps, on active duty, did, at Camp Pendleton, CA, on or about 5 February 2004, unlawfully hit Private C. K. S_, U. S. Marine Corps, in the chest with a compact disk player.  Specification 3: In that Lance Corporal B_ F. O_(Applicant), U. S. Marine Corps, on active duty, did, at Camp Pendleton, on or about 4 February 2004, unlawfully hit Private R. M. R_, U. S. Marine Corps, in the chest with a roll of toilet paper.

040312:	Charges referred to special court-martial.

040407:	Charges preferred for violation of the Uniform Code of Military Justice (UCMJ) Article 86:  In that Lance Corporal B_ F. O_(Applicant), U.S. Marine Corps, on active duty, did, on or about, 0700 on 19 February 2004, without authority, absent himself from his unit, to wit: Security Battalion, Marine Corps Base, located at Camp Pendleton, CA., and did remain so absent until on or about 0700 on 20 February 2004.

040420:	Applicant’s pretrial agreement. Applicant agreed to enter pleas of guilty to the charges and specifications at nonjudicial punishment.

040422:	Charges referred to special court-martial.

040422:	Charges and specifications from Charge Sheets dated 040227 and 040407 are hereby withdrawn and dismissed without prejudice.  The charges and specifications will be adjudicated at battalion level nonjudicial punishment.

040426:	NJP for violation of UCMJ, Article 86.
	Specification 1: SNM did on or about 031215 at or about 0530, fail to go to his prescribed place of duty, to wit: Bldg 22160.
	Specification 2: SNM did on or about 040219, wrongfully absent himself from his unit until on or about 040220 at or about 0700.
	Violation of UCMJ, Article 92:
	Specification 1: In that SNM failed to obey a lawful general order, to wit BO P5000.23, by wrongfully possessing bottles of liquor in his barracks room on or about 031211.
	Specification 2: In that SNM failed to obey a lawful order issued by Cpl M. E. L_ on or about 031002 by failing to order the members of squad bay five to get on line.
	Specification 3: In that SNM violated a general order, Brig Order P1640.15B, by kicking Pvt C. K. S_ on or about 040202.
	Award:  Forfeiture of $668 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2.  Not appealed.

040505:	Applicant notified of intended recommendation for discharge by reason of misconduct due to a pattern of misconduct with a characterization of service as under other than honorable conditions.  The factual basis for this recommendation was your five documented 6105 entries and three article 15 hearings to include your latest article 15 hearing held on 26 April 2004.  

040510:	Applicant advised of rights and having consulted with counsel, elected to waive all rights.

040512:	Commanding Officer, Security Battalion, Marine Corps Base, Camp Pendleton, CA, recommended 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 Private O_(Applicant)’s five documented 6105 entries and three article 15 hearings to include his latest article 15 hearing held on 26 April 2004.  Commanding Officer’s comments:  “Private First Class O_(Applicant) has shown evident disregard for the rules and regulations of the Uniform Code of Military Justice.  He has demonstrated over a lengthy period of time that he lacks the requisite character to succeed as a United States Marine.  Retention of this Marine would be a burden to this unit and detrimental to the good order and discipline of this command and the United States Marine Corps.”

040518:	SJA review determined the case sufficient in law and fact.

040519:	GCMCA, Commanding General, Marine Corps Base, Camp Pendleton 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 (Proficiency and Conduct marks).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20040521 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).

The Applicant's other than honorable discharge was proper and equitable.  The NDRB, under its responsibility to examine the propriety and equity of an Applicant's discharge, will change the reason for discharge if such a change is warranted.  There is no evidence of impropriety, inequity or procedural irregularities in the Applicant's discharge.  The Applicant's misconduct is clearly documented.  As part of his special court-martial Memorandum of Pretrial Agreement, the Applicant agreed to enter pleas of guilty to violations of the UCMJ at a nonjudicial punishment proceeding and to waive his right to an administrative discharge review board. The Applicant was afforded the appropriate due process during the processing of his case.  An upgrade of the Applicant's discharge to an honorable characterization is not warranted.  Relief denied.

When the service of a member of the U.S. Marine Corps 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 3 nonjudicial punishment proceedings for violations of Articles 86 (3 specifications) and 92 (5 specifications) of the UCMJ.  In addition, the Applicant received 5 retention warnings, which he violated with continued misconduct, was not recommended for promotion on 3 occasions, and had a suspended NJP award vacated.  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 U.S. Marine Corps and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

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 92, failure to obey order or 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