Author: CAP
Last saved by: Department of the Navy
Company: NCPB

Docket No. MD03-01029

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

 ex-Pvt, USMC
Docket No. MD03-01029

Applicant’s Request

The application for discharge review was received on 20030522.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record review.  The Applicant listed the Disabled American Veterans as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20020415.  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: GENERAL (UNDER HONORABLE CONDITIONS)/Physical Disability With Severance Pay, authority: MARCORSEPMAN Par. 8401.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “To Whom It May Concern:

I am Submitting this letter as an attachment to the form being submitted.  My main reason for wanting, and requesting a change of discharge to honorable is to enable me to go to school using my GI bill.  I had submitted a previous letter but had not received any replies in return and was unable to go to school in January of this year.  At this time I am trying to enroll in the summer course unsure of the decision that was made towards my previous request, but was sent a letter form the VA rep at the school to submit my paper work for summer classes.  SO I in turn chose to write back to make sure that I would be able to attend my summer classes.  I know that a lot of my actions in the military after you have looked them over were, pretty much immature and me wanting to follow up in school I should have known better.  IM currently a disabled vet and for me to follow up in a career job which does not involve heavy lifting or heavy strain to my injuries I need to get a diploma or certificate of achievement in a field.  The field, in which IM trying to follow up with is computers I have a vast knowledge of them but for me to be hired I need a college certificate or diploma or basically some type of school.  I am asking and without choosing the word begging that I may be given that chance and if there was already an action taken so that I may be able to go to school my home address will be listed at the bottom of the letter and I thank you.

Sincerely Yours

G_ V_ (Applicant)

(Applicant’s address deleted)”

Additional issues submitted by Applicant’s representative (Disabled American Veterans):

2.  “Dear Chairperson:

After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of the evidence assembled for review, we continue to note the contention of the appellant in his request for a discharge upgrade of the current General, Under Honorable Conditions to an Honorable.

The FSM served on active service from December 27, 1993 to January 15, 1999 at which time he was discharged due to physical disability with severance pay.

As the FSM has submitted, one document in support of his character since discharge.  We as the representative, ask that consideration be given to equitable relief, as this is a matter that involves a determination whether a discharge should be changed under the equity standards, to include any issue upon which the Applicant submits to the Board’s discretionary authority, under SECNAVIST 5420.174C.

We ask for the Board’s careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision.  These issues do not supersede any issues previously submitted by the Applicant.

Respectfully,”

Documentation

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

Job/character reference from Econo Lodge, undated
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		930223 - 931226	COG

Period of Service Under Review:

Date of Enlistment:  931227		Date of Discharge:  990115

Length of Service (years, months, days):

	Active:    05  00  19
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  46

Highest Rank:  Cpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.9 (12)			Conduct:  3.9 (13)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR

Days of Unauthorized Absence:  63

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

GENERAL (UNDER HONORABLE CONDITIONS)/Physical Disability with severance pay, authority:  MARCORSEPMAN Par. 8401.

Chronological Listing of Significant Service Events:

950519:	NJP for violation of UCMJ, Article 86:
Specification: Absent from appointed place of duty on 0730-1500, 950413, to wit: AmmoCo.
Awarded forfeiture of $200.00 per month for 1 month, restriction and extra duties for 14 days.  Forfeiture of $100.00 for 1 month suspended for 6 months.  Not appealed.

950608:	Vacate suspended forfeiture awarded at CO’s NJP dated 950519.

950608:	NJP for violation of UCMJ, Article 92:
Specification: Fail to obey a lawful order by operating a POV without a license on 1500, 950518.
Awarded restriction and extra duties for 10 days.  Not appealed.

950629:	NJP for violation of UCMJ, Article 86:
Specification: Fail to go at the prescribed time to appointed place of duty on 0530, 950626, to wit: PT formation.
Violation of UCMJ, Article 92:
Specification: Operate a vehicle without a license on 2117, 950624.
Violation of UCMJ, Article 134:
Specification: Willfully and knowingly give false verbal statements on 2117, 950624 about an incident in which LCpl was caught without a license.
Awarded forfeiture of $478.00 per month for 1 month, restriction and extra duties for 30 days, reduction to PFC.  Forfeiture and reduction suspended for 6 months.  Not appealed.

951126:	Applicant to unauthorized absence 0001, 951126.

960130:	Applicant from unauthorized absence 0020, 960130 (63 days/apprehended).  Applicant apprehended by U.S. Customs agent.

960130:	Applicant delivered to command at 2355, 960130.

960131:	Applicant placed in pre-trial confinement.  [EXTRACTED FROM DD 214.]

960315:	Special Court Martial:
	Charge I: violation of the UCMJ, Article 86:
	Specification: Unauthorized absence 951126 – 960129 (63 days/apprehended).
	Findings: to Charge I and specifications thereunder, guilty.
	Sentence: Confinement for 60 days, forfeiture of $250 per month for 2 months, reduction to Pvt.
	CA 960621: Sentence approved and ordered executed.

960315:	To confinement.  [EXTRACTED FROM DD 214.]

960318:	Returned to full duty.

961120:	Counseled for deficiencies in performance and conduct.  [Violation of Article 86, Unauthorized absence.  Specifically your failure to be at appointed place of duty (0600 morning formation on 961115, and 0630 morning formation on 961119).  This type of behavior displays poor judgment, lack of initiative and a blatant disregard for policy and procedures.  This type of behavior is prejudicial to good order and discipline with this command and will not be tolerated.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

970417:	Counseled for deficiencies in performance and conduct.  [Poor judgment, initiative, and conduct which is prejudicial towards good order and discipline.  Specifically on 970415, you reported to the Commanding Officer without a shave, utilities totally unsat, and horrific grooming standards.  This type of behavior is not expected of a Marine and is irresponsible and will not be tolerated.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  

970806:	Counseled for deficiencies in performance and conduct.  [Violation of Article 86.  Specifically on 970729 you were absent from your appointed place of duty form 0615 to 0720.  This type of behavior is unacceptable and prejudicial to the good order of this command and will not be tolerated.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

970806:	Counseled for deficiencies in performance and conduct.  [I have been informed that I may have been informed that I may be processed for separation by falling under one of the following two categories: Minor disciplinary actions (documented series of at least 3 minor disciplinary infractions) during current enlistment which have/would have been disciplined under Art. 15, NJP pattern of misconduct (pattern of more serious infractions) or instance of conduct prejudicial to good order and discipline within one enlistment.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

971006:	Counseled for deficiencies in performance and conduct.  [Your lack of judgment which resulted in a civilian misdemeanor conviction of death by vehicle and reckless driving (971001) which occurred on 970122 when you fell asleep while driving.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

981020:	Counseled for deficiencies in performance and conduct.  [Unauthorized absence from your appointed place of duty on 0530, 981019, to wit: platoon formation and did not report to work section until 0645, 981019.  This type of behavior demonstrates poor judgment and disregard for good order and discipline.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

981105:	Findings of Physical Evaluation Board Proceedings:  Unfit.  Recommendation: to be separated from active duty with severance pay.  Combined disability rating: 10%.  Unfitting condition(s): Right closed tibia fracture.

981112:	Applicant signed findings counseling and accepted the preliminary findings.

981112:	Applicant’s case has been considered and finalized by the Secretary of the Navy’s Disability Evaluation System as unfit to continue active duty because of a physical disability.

981203:	NJP for violation of UCMJ, Article 92:
Specification: Failed to obey an order or regulation, to wit: caught with a pierced tongue, which is in violation of MCO 1020.34F paragraph 1005.7A.
Awarded forfeiture of $251.00 per month for 1 month.  Not appealed.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19990115 with a general (under honorable conditions) due to physical disability with severance pay (A).  The Board presumed regularity in the conduct of governmental affairs (B).  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).

Issues 1-2. A characterization of service of general under honorable conditions is warranted when the member’s conduct constitutes a significant departure from that expected of a Marine.  The Applicant’s service was marred by award of non-judicial punishment (NJP) on four occasions, one special court-martial, adverse counseling entries on other occasions, and performance and conduct markings well below the minimum acceptable levels.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for an honorable characterization of service.  An upgrade to honorable would be inappropriate.  It must be noted that most Marines serve honorably and well and therefore earn honorable discharges.  In fairness to those Marines, commanders and separation authorities are tasked to ensure that undeserving Marines receive no higher characterization than is due.  Relief denied.

The Applicant's general under honorable conditions 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.  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 other evidence related to his discharge at that time.  Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  Marine Corps Separation and Retirement Manual, (MCO P1900.16E), paragraph 8401 DISABILITY DISCHARGE WITH SEVERANCE PAY, states that per 10 U.S.C. 1203 and 1206, certain Marines not eligible for retirement by reason of physical disability, but found unfit for duty by reason of physical disability, may be discharged from the Marine Corps with severance pay.  Eligibility requirements are contained in tables 8-2 and 8-3.

B.  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.  

C.  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.

D.  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 “afls14.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: