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Docket No. MD04-00832

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

ex-PFC, USMC
Docket No. MD04-00832

Applicant’s Request

The application for discharge review was received on 20040421.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions.  The Applicant requests a documentary record discharge review.  The Applicant designated the American Legion as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041008.  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/MISCONDUCT, authority: MARCORSEPMAN Par. 6210.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “Retain GI Bill for schooling, Government Employment”

Additional issues submitted by Applicant’s counsel/representative (American Legion):

2.  “Equity Issue:  Based on our review of evidentiary record and on behalf of this former member, we request that the Board consider provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application. 
________________________________________________________________________

In accordance with 32 C.F.R., section 724.166 and SECNAVINST 5420.174C, enclosure (1), paragraph 1.16, The American Legion submits to the Naval Discharge Review Board (NDRB or Board) the above issue and following statement in supplement to this Applicant’s petition. 

Review of the service record reveals that this former member maintained satisfactory PRO/CON markings of 3.7/3.7 and earned the NDSM and SSDR.  He was awarded NJP on 010320 for VUCMJ, Art. 92 (2 specs); NJP on 011228 for VUCMJ, Art. 92 and NJP on 021104 for VUCMJ, Arts. 86, 92.  Following due process notifications, he was discharged Under Other Than Honorable Conditions due to a pattern of misconduct as authorized by MARCORSEPMAN, Par. 6210.3.

Essentially, as noted on DD Form 293 and attachment, this Applicant is requesting that his discharge be upgraded because it is too harsh in light of his overall service record and because he would like his VA benefits.  He has submitted 24 pages of additional documentation for consideration from fellow Marines indicating that he was a good Marine.

The American Legion’s express purpose in providing this statement and any other submittals or evidence filed is to assist this Applicant in the clarification and resolution of the impropriety or inequity raised.  To that end, we rest assured that the NDRB’s final decision will reflect sound equitable principles consistent in law, regulation, policy and discretion as promulgated by title 10 U.S.C., section 1553, and set forth in 32 C.F.R., part 724 and SECNAVINST 5420.174C, enclosure (1). 

This case is now respectfully submitted for deliberation and disposition.”

Documentation

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

Statement in support of claim, dated December 10, 2003
Letter of recommendation, undated
Character reference, dated March 11, 2003
Character reference, unsigned, undated
Character reference, undated
Character reference, undated
Character reference, undated
Character reference, undated
Character reference, dated March 10, 2003 (2)
Character reference, dated March 11, 2003
Character reference, undated
Character reference, dated March 11, 2003
Character reference, undated
Character reference, undated
Character reference, dated February 18, 2003
Character reference, undated
Character reference, undated

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		991216 - 991227	COG

Period of Service Under Review:

Date of Enlistment:  991228		Date of Discharge:  030602

Length of Service (years, months, days):

	Active:    03  05  05
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  32

Highest Rank:  LCpl			MOS:  0331

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.7 (8)			Conduct:  3.7 (8)

Military Decorations:  None

Unit/Campaign/Service Awards:  RMB, NDSM, SSDR

Days of Unauthorized Absence:  None

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:

991206:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

010320	NJP for violation of UCMJ, Article 92:
Specification 1: Violate the provisions of MCO 1020.34F by shaving his eyebrows.
Specification 2: Willfully disobey Corporal’s order of 010223 to write two essays by 010226.
Awarded forfeiture of $584.00 per month for 2 months, correctional custody for 30 days, reduction  to E-2.  Forfeiture for 1 month suspended for 6 months.  Not appealed.

010712:	Applicant informed eligible but not recommended for promotion to Corporal for the August promotion period because of no initiative no motivation, lack of responsibility.

011228:	NJP for violation of UCMJ, Article 91
Specification: Show insubordinate conduct towards Sgt on 011115, to wit: by flipping him off while going down the rope.
Violation of UCMJ, Article 92:
Specification: Refuse to train on 011115, to wit: by refusing to go down a rope a second time.
Awarded forfeiture of $283.00 per month for 1 month, restriction and extra duties for 14 days.  Forfeiture suspended for 6 months.  Not appealed.

020628:	Counseled for deficiencies in performance and conduct.  [Your ability to follow orders and directions as may be given from time to time by superiors acting according to the rules and articles governing the good order and discipline of the Armed Forces.  When you knowingly disregarded orders from the Company First Sergeant, when told to place a newly purchased handgun in the Company G armory, which you fail to obey by placing it in your privately owned vehicle aboard base for a two-week period.  Your actions display an extreme lack of judgment, and weren’t in keeping with our Core Values, of Honor, Courage, Commitment.  Behavior of this nature will not be tolerated.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

020729:	Counseled for deficiencies in performance and conduct.  [Alcohol related incident on 020727.  SNM was in attendance at a party where alcohol was present, resulting in SNM being assaulted.  As a reminder you are being counseled that while under the influence of alcohol you are responsible for your actions.  Your actions displayed a lack of judgment, and were not in keeping with Honor, Courage, Commitment, and the special trusts and confidence expected of a United States Marine.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

021104:	NJP for violation of UCMJ, Article 86:
Specification: Absent form unit on 0715, 021020.
Violation of UCMJ, Article 92:
Specification: Wrongfully fail to obey the Battalion policy concerning the liberty risk program by not signing out, failing to utilize the buddy program, and staying out past 0200, on 021018.
Awarded forfeiture of $619.00 per month for 2 months, restriction and extra duties for 45 days, reduction to E-2.  Not appealed.

021104:	Counseled for deficiencies in performance and conduct.  [Your recent NJP for articles 86 unauthorized absence, and 92 failure to obey an order or regulation when you wrongful violated the Battalion liberty policy by taking off and not returning at the designated time 0200 ultimately resulting in your unauthorized absence, and failure to obey an order.]  Necessary corrective actions explained, sources of assistance provided.

021206:	Applicant informed eligible but not recommended for promotion to 			Corporal for the April promotion period because of probation NJP.

021216:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by: “you  have continually violated the UCMJ as follows: On 020320, you received battalion level NJP for violation of articles 92x2, UCMJ for violating MCO 1020.34F by shaving your eyebrows, and for disobeying a direct order on 010223; on 011228, you received company level NJP for violation of articles 91 and 92; UCMJ for insubordination towards an NCO and refusing to train; on 021104, you received battalion level NJP for violation of articles 86 and 92, UCMJ for unauthorized absence and failure to obey an order or regulation by violating the liberty risk program.”  

021216:	Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

030305:	Applicant successfully complete Intensive Outpatient portion of treatment for alcohol dependence with a guarded prognosis and provided with the after care treatment.

030312:	Applicant waived administrative discharge board.

030402:	Counseling: Advised of deficiency (proficiency and conduct marks received on 030131, of 3.9/3.0, due to a recent NJP.).

030402:	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: “Private First Class M_ (Applicant) completed recruit training, SOI, and was assigned to 3d Battalion, 4th Marines on 7 June 2000.  While at 3d Battalion, 4th Marines, he was not recommended for promotion to Corporal twice, received one company level NJP for violation of articles 91 and 92, UCMJ (insubordinate conduct towards an NCO and refusing to train), and one battalion level NJP for violation of article 92x2, UCMJ (failure to obey regulation by shaving his eyebrows and disobeying a lawful order).  He joined this command on 13 April 2002.  Since joining this command, Private First Class M_ (Applicant) has received two negative page 11 couinselings, and one battalion level NJP for violation of articles 86 and 92, UCMJ (unauthorized absence and failure to obey a regulation).  

030428:	SJA review determined the case sufficient in law and fact.

030509:	GCMCA, CG, 3d Marine Division, 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 20030602 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 Applicant is requesting an upgrade to General/Under Honorable Conditions in order to “Retain GI Bill for schooling, Government Employment”.  The Veterans Administration determines eligibility for post-service benefits not the Navy 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.  Additionally, 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 on the propriety and equity of the discharge.  

Issue 2.  The Applicant’s representative submitted the following issue in supplement to the Applicant’s petition:  “this Applicant is requesting that his discharge be upgraded because it is too harsh in light of his overall service record ” and that “he has submitted 24 pages of additional documentation for consideration from fellow Marines indicating that he was a good Marine.”  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 and 91 and 3 violations of Article 92 of the UCMJ.  The Applicant also has a Counseling entry for failure to follow orders and directions from a superior. 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 following is provided for the edification of the Applicant.  Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no impropriety after a review of Applicant’s case.  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, however, 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 should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities.  As of this time, the Applicant has not provided sufficient documentation for the Board to consider.  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 additional documentation to support any claims of post-service accomplishments at that time.  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 86, unauthorized absence for more than 30 days.

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 “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.