Author: CAP
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Docket No. MD00-00476

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

 ex-Pvt, USMC
Docket No. MD00-00476

Applicant’s Request

The application for discharge review, received 010301, requested that the characterization of service on the discharge be changed to general/under honorable conditions.  The applicant requested a documentary record discharge review.  The applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 011218.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MARCORSEPMAN Par. 6210.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  I would like to start off by saying how stupid I was for not staying in the military, every day I think and wish I was still in, I can only blame my self but the reason was for a girl.

DEAR BOARD,

I AM WRITING THIS LETTER TO GET MY DISCHARGE UPGRADED AND THEN REENLIST INTO THE MILITARY.  AS YOU CAN SEE I HAVE A OTHER THAN HONORABLE WITH A POM AND MY REENLISTMENT CODE IS 4 AND THE RECRUITER TOLD ME WITH A CODE OF 3 HE CAN REENLIST ME WITH A WAIVER.  I KNOW I MADE A STUPID MISTAKE AND PRAY I CAN DO SOMETHING ABOUT IT.

WHEN THIS HAPPENED I WAS, OR I THOUGHT I WAS IN LOVE AND THE GIRL I WAS WITH TOLD ME SHE WOULD LEAVE ME IF I DIDN'T STAY HERE AT HOME WITH HER AND BEING THE FOOL I STAYED WITH HER AND ENDED UP LOSING A GREAT LIFE IN THE MILITARY AND THE GIRL.  I WANT TO MAKE UP FOR IT, AND REENLIST AND STAY IN THE MILITARY FOR LIFE OR AT LEAST UNTIL I RETIRE.  ALL I NEED IS A LEVEL 3, PLEASE HELP ME WITH THIS.  I HAVE MATURED SINCE THEN AND NOT A DAY GOES BY WITHOUT ME WISHING THAT I COULD CHANGE THE PAST AND LEFT THE GIRL AND STAYED IN THE MILITARY.  WITH THIS CHANCE YOU CAN GIVE ME THE OPPORTUNITY TO BETTER MY LIFE AND RIGHT THE WRONGS.  THANK YOU, SINCERELY

Documentation

In addition to the service record, the following additional documentation, submitted by the applicant, was considered:

Copy of DD Form 214 (2 copies)
Letter from applicant dated March 13, 2000

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		970210 - 970803	COG

Period of Service Under Review:

Date of Enlistment:  970804		Date of Discharge:  981004

Length of Service (years, months, days):

	Active:    01  02  01
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  49

Highest Rank:  Pvt

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.6 (2)			Conduct:  1.8 (4)

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  121

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:

980604:	NJP for violation of UCMJ, Article 86 (2 specs):
Specification 1: Unauthorized absence from 0700, 28Dec97 to 0700, 22Feb98 (55 days/apprehended).
Specification 2: Unauthorized absence from 1600, 13Mar98 to 2045, 19May98 (66 days/apprehended).
Awarded forfeiture of $463.00 per month for 2 months, correctional custody for 30 days.  Not appealed.

980605:	Counseled for deficiencies in performance and conduct.  [NJP held 980604 for violation of Article 86 x 2 of the UCMJ, specifically; unauthorized absence].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

980623:	NJP for violation of UCMJ, Article 91:
Specification: Disobeyed order from 1^st Sgt to train by refusing to train on 12Jun98.
Violation of UCMJ, Article 134:
Specification: Escaped while undergoing correctional custody on 0420, 12Jun98.
Awarded forfeiture of $428.00 per month for 2 months, restriction and extra duties for 45 days.  Not appealed.

980623:	Counseled for deficiencies in performance and conduct.  [NJP held 980623 for violation of Articles 91, 134; specifically, disobeying a lawful order, and escaping from CCU.  This is counter to all sense of good order and discipline as well as the core values taught at Marine Corps recruit training].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

980709:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

980709:	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

980709:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.  The factual basis for this recommendation was your nonjudicial punishment of 980604 and 980623.

980922:	SJA review determined the case sufficient in law and fact.

980925:	GCMCA [Commander, Marine Corps Base, Camp Lejeune, NC] 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 981004 under other than honorable conditions for misconduct due to a pattern of misconduct (A and B).  The Board presumed regularity in the conduct of governmental affairs (C).  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 (D and E).

Issue 1.  The NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces.  Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment.  A request for waiver is normally done only during the processing of a formal application for enlistment through a recruiter.  Relief is therefore denied.

The applicant’s discharge characterization accurately reflects his service to his country.  The discharge was proper and equitable.  Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  No such error or injustice occurred during the applicant’s enlistment.  Additionally, 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 the service.  However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent that such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review.  Verifiable proof of any post-service accomplishments must be provided in order for the applicant to claim post-service conduct and behavior as a reason to upgrade a less than Honorable discharge.  Evidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs, are examples of verifiable documents that should have been provided to receive consideration for relief, based on post-service conduct.  The applicant did not provide sufficient documentation to warrant an upgrade to his discharge.  He is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge.  The applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  Legal representation at a personal appearance hearing is highly recommended but not required.  Relief denied.

Pertinent Regulation/Law (at time of discharge)

A.  Paragraph 6210, MISCONDUCT, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 18 Aug 95 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, unauthorized absence for more than 30 days; Article 91, disobeying orders.

C.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

D.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

E.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

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 “afls10.jag.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:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023

The remaining portion of this document is divided into 4 Parts: Part I - Applicant’s Issues and Documentation, Part II - Summary of Service, Part III – Rationale for Decision and Pertinent Regulation/Law, Part IV - Information for the Applicant.
INDEX:  A6750/A9303/A9219/A9231