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Docket No. MD04-01210

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

ex-Pvt, USMC
Docket No. MD04-01210

Applicant’s Request

The application for discharge review was received on 20040723.  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 did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041222.  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:

“I feel that I have changed and can be a great help to the military.   When I first joined I was young and married was missing home.  Now that I’ve been out of the service I’ve realized that it was the best thing that happened to me.  So I ask that you’ll take my upgrade into great consideration.”

Documentation

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

None 

PART II - SUMMARY OF SERVICE

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

	Active:   None		
	Inactive: None

Period of Service Under Review:

Date of Enlistment:  990609		Date of Discharge:  020621

Length of Service (years, months, days):

	Active:    02  08  03
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  48

Highest Rank:  LCpl			MOS:  3521

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.0 (*)			Conduct:  3.8 (*)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, RMB

Days of Unauthorized Absence:  72

* Proficiency and Conduct marks extracted from SJA Letter, 13 Jul 02.

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:

991025:	Counseled for deficiencies in performance and conduct.  [Your unsatisfactory conduct as evidenced by your unauthorized absence from your unit on or about 2146, on 991004 to on or about 1650, on 991010.  This behavior is unsatisfactory and will not be tolerated.  Accountability is paramount to the Marine Corps mission.  You can not just come and go as you please.  This conduct is unbecoming of a Marine and does not conform to the good order and discipline of the Marine Corps. ]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

991013:	Applicant to UA (AWOL) since 2146, 991004.

991014:	Applicant from UA (AWOL) at 1650, 991010.

991026:	NJP for violation of UCMJ, Article 86 (1 spec):
Specification 1:  UA from H&Sco, MCCSSS, MCB CamLej, 2146, 991004 to 1650, 991010.
Awarded 30 days restriction to the limits of LOScol, MCCSSS, MCB CamLej without suspension from duty, 30 days extra duty to run concurrently.  Not appealed.

000620:	Counseled for deficiencies in performance and conduct.  [Specifically for failure to obey Marine Corps orders and regulations.   This will not be tolerated.]   Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

000710:	NJP for violation of UCMJ, Article 86 (1 spec):
Specification 1:  UA (AWOL) Did, absent himself from his organization from, 1200 on 000530 and did remain so absent until, 2359 on 000601.
Awarded forfeiture $263.00 pay per month for 1 month (total forfeiture $263.00), 14 days restriction to the limits of Engineer Support Company, 8^th EngrSptBn, 2d FSSG without suspension from duty and 14 days extra duties to run concurrently.  Forfeiture of $263.00 pay per month for 1 month, 14 days restriction and 14 days extra duties suspended for 3 months, at which time, unless sooner vacated, will be remitted without further action. (Total forfeiture suspended $263.00).  Not appealed.

010822:	NJP for violation of UCMJ, Article 86 (1 spec):
Specification 1:  UA (AWOL) from 0700, 010706 to 0700, 010709 without proper authority absence himself from his appointed place of duty.
Awarded reduction to E-2, forfeiture of $584.00 pay per month for 2 months (Total forfeiture $1168.00), and 60 days restricted to the limits of 8thESBn, 2dFSSG without suspension from duty.  Effective date of reduction is 010807.  Forfeiture of $584.00 pay per month for 1 month suspended for 3 months, at which time, unless sooner vacated , the suspended forfeiture will be remitted without further action (Total forfeiture suspended $1168.00).   Not appealed.

010827:	Applicant to UA (AWOL) since 0200, 000530.

010827:	Applicant from UA (AWOL) at 0700, 000601.

020514:	NJP for violations of UCMJ, Article 121, 86, 92, 134:
Violation of UCMJ Article 121 (1spec):
Specification 1: On or about 1630, 0200326 SNM stole 2 compact disc, the property of the main exchange.
Violation of UCMJ, Article 86 (3 specs):
Specification 1:  UA (AWOL) 0600, 010930
Specification 2:  UA (AWOL) 0600, 011126 to 0950, 011226
Specification 3:  UA (AWOL) 0500, 020119
Violation of UCMJ, Article 92 (3 specs):
Specification 1:  On or about 011028 failed to obey a lawful order.
Specification 2:  On or about 0500, 011028 violate BO P5560.2K.
Specification 3:  On or about 0500, 011028 fail to do the same by driving his vehicle off base.
Violation of UCMJ, Article 134 (1spec):
Specification 1:  On or about 011028 at barracks FC-550 SNM breaks his restriction.
Awarded reduction to E-1, forfeiture $257.00 pay per month for 2 months (Total forfeiture $514.00), 45 days restriction to the limits of 2d MaintBn, 2dFSSG without suspension from duty, and 45 days extra duties, to run concurrently.  Forfeiture of $257.00 pay per month for 2 months suspended for 6 months, at which time, unless sooner vacated, the suspended forfeiture will be remitted without further action (Total forfeiture suspended $514.00). Not appealed.

020606:	Counseled for deficiencies in performance and conduct.  [Pattern of misconduct.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

020611:	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 your [Applicant] 2 adverse page 11’s, 4 NJPs, and subsequent misconduct as documented by a charge sheet dated 4 June 2002.
.
020611:	Applicant advised of 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.

020611:	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 based upon his [Applicant’s] 2 adverse page 11’s, 4 NJPs, and subsequent misconduct as documented by a charge sheet dated 4 June 2002.

020713:	SJA review determined the case sufficient in law and fact.

Not Dated:	GCMCA, Commander, 2d Force Service Support Group, 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 20020621under other than honorable conditions for misconduct due to a pattern of misconduct (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).

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 any documentation for the Board to consider.  Relief denied.

The Applicant contends that his problems in the Marine Corps can be attributed to being young, married and homesick.  While he may feel that these factors were the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service.  The Applicant’s service was marred by 4 nonjudicial punishment proceedings for violations of Articles 86 (UA for a total of 72 days), 92, 121, and 134 of the UCMJ.  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.  The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his 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.  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.  Paragraph 6210, MISCONDUCT, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 01 Sep 2001 until Present. 

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

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.

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

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.