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Docket No. MD05-00704

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

FOR OFFICIAL USE ONLY

ex-Pvt, USMC
Docket No. MD05-00704

Applicant’s Request

The application for discharge review was received on 20050302.  The Applicant requests the Discharge 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 designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20051006.  After a thorough review of the available 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 minor disciplinary infractions.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“Trying to get back into service and need to change my “RE” code in order to get a waiver from recruiters office.”

Documentation

In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:

Applicant’s DD Form 214 (Member 1 and 4)
Statement from Applicant, undtd
Character Reference ltr from M_ L. M_, dtd April 16, 2004
Job reference ltr from Costal Enterprises of Jacksonville, Inc., from Grounds Maintenance Director, dtd October 29, 2004
Job reference ltr from J_ J. G_, Onslow County Schools Transportation, dtd January 7, 2005
Character reference ltr from S_ G_, undtd
Letter from Applicant, undtd

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	20020506 - 20020630	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20020701		Date of Discharge:  20030130

Length of Service (years, months, days):

Active:    00  07  00  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  40 days
	Confinement:		  None

Age at Entry:  18

Years Contracted:  4

Education Level:  12				AFQT:  48

Highest Rank:  Pvt				MOS:  9900

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  NA*				Conduct:  NA*

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

*Not Available

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  MARCORSEPMAN Par. 6210.2.

Chronological Listing of Significant Service Events:

021014:	Applicant to unauthorized absence at 0630 on 021014.

021104:	Applicant from unauthorized absence at 1630 on 021104 (21 days).

021106:	Counseling:  Advised of deficiencies in performance and conduct (Violation Article 86: Unauthorized absence (UA).  SNM was UA from 0630/021014 to 1630/021104.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued. [Note: Applicant was not available for signature at time of entry.]

021107:	Applicant to unauthorized absence at 0345 on 021107.

021126:	Applicant from unauthorized absence at 1530 on 021126 (19 days).

021127:	Battalion NJP for violation of UCMJ, Article 86 (2 specs).
	Specification 1: In that Private S_, D_ M. (Applicant), U.S. Marine Corps, did, at or about 0630, 14 Oct 02, without authority, absent himself from his appointed place of duty, at which he was required to be, to wit: Golf Company, Marine Combat Training Battalion, School of Infantry, Training Command, Camp Lejeune, and did remain so absent until 1630, 04 Nov 02.
	Specification 2: In that Private S_, D_ M. (Applicant), U.S. Marine Corps, did, at or about 0345, 07 Nov 02, without authority, absent himself from his appointed place of duty, at which he was required to be, to wit: Golf Company, Marine Combat Training Battalion, School of Infantry, Training Command, Camp Lejeune, and did remain so absent until 1530, 26 Nov 02.
	Award:  Forfeiture of $552 per month for 2 months, restriction for 60 days.  Not appealed.

021127:	Counseling:  Advised of deficiencies in performance and conduct (Violation Article 86: Unauthorized absence (UA).  SNM was UA from 0345/021107 to 1530/021126.  This is SNM’s 2nd offense of Article 86.  SNM reminded of obligation of service to the Corps.), necessary corrective actions explained, sources of assistance provided.

021202:	Counseling:  Advised of deficiencies in performance and conduct (Violation of Article 108: Loss of military property of the United States – Applicant’s loss of military equipment specifically, modular sleeping system and polypropylene undergarments issued to Applicant by leaving it unsecured is not good judgment.  Applicant is responsible for all equipment issued to Applicant at all times.)  Advised being processed for administrative discharge action.

030130:	DD Form 214: Applicant discharged with under other than honorable conditions by reason of misconduct due to minor disciplinary infractions, authority: MARCORSEPMAN Par. 6210.2.

Service Record Book did not contain the Administrative Discharge package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030130 by reason of misconduct due to minor disciplinary infractions (A) 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 (B and C).  The Board presumed regularity in the conduct of governmental affairs (D).

The Applicant requests a discharge characterization upgrade to General (Under Honorable Conditions) and a change in “RE” code in order to reenter service.  The Board recognizes the Applicant’s motivation to reenter service.  Notwithstanding, the Applicant is reminded that his seven months of service was marred by nonjudicial punishment proceedings for two periods of unauthorized absence (totaling 40 days); two counseling entries for violation of UCMJ, Article 86 Unauthorized absence; and a counseling entry for violation of UCMJ, Article 108 Loss of military property.  These negative aspects support his characterization of service as under other than honorable conditions.  The Applicant is advised that the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into any of the Armed Forces.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.  Since reentry into military service does not serve to provide a foundation upon which this Board can grant relief, no relief is granted on this basis.

Normally, to permit relief, a procedural impropriety or inequity must have existed during the discharge process for the period of enlistment in question, but the Board found no such impropriety or inequity.  While 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 Marine Corps, the Board is authorized 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.  The Applicant provided four character references for consideration.  The Applicant is advised that his efforts need to be more encompassing to include proof of verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities.  At this time, there is not sufficient documentation of post service character and conduct to mitigate the misconduct that resulted in his characterization of discharge.  And so, no relief is granted on this basis.

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 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 September 2001 until Present.

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

D.  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.

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