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Docket No. MD05-01421

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

FOR OFFICIAL USE ONLY

ex-PFC, USMC
Docket No. MD05-01421

Applicant’s Request

The application for discharge review was received on 20050815.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable.  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 20060524.  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) by reason of hardship.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“Trying to further my education - I contributed $1,200.00 to MGIB and am unable to use due to my discharge being “under honorable conditions” request my discharge be upgraded to Honorable for those Reasons.”

Documentation

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

Applicant’s DD Form 214 (Member 1)
Enrollment request printed May 19, 2005
2005-2006 Financial Aid Award Notice from Blue Ridge Community College, dtd July 	1, 2005

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	20001213 - 20010611	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20010612		Date of Discharge:  20030207

Length of Service (years, months, days):

Active:    01  07  26
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  18

Years Contracted:  5

Education Level:  12				AFQT:  42

Highest Rank:  LCpl				MOS:  6048

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):  National Defense Service Medal, Rifle Marksman Badge

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

GENERAL (UNDER HONORABLE CONDITIONS)/HARDSHIP, authority:  MARCORSEPMAN Par. 6407.

Chronological Listing of Significant Service Events:

001213:	Pre-service waiver granted.

020731:	Counseling:  Advised of deficiencies in performance and conduct (Disobeying a lawful order, to wit: during remedial PT, when directed to perform PT by the training NCO, refused.  Additionally conducted yourself in an unprofessional manner while at the Family Service Center by uttering disparaging comments about command and requirement to attend assigned classes.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

020806:	NJP for violation of UCMJ, Article 91 - On or about 0600 on 31 Jul 02 SNM walked away from PT formation saying he was not going to run any more.
Violation of UCMJ, Article 134 - On or about 0600 on 31 Jul 02 SNM used threatening gestures to point at another Marine and warn this other Marine “not to get loud at him.”
	Award:  Forfeiture of $200 per month for 2 months, extra duty for 45 days, reduction to E-2.  Forfeiture suspended for 6 months.  No indication of appeal.

030207:	DD Form 214:  Applicant discharged with a general (under honorable conditions) by reason of hardship, authority: MARCORSEPMAN par 6407.

Service Record Book did not contain the Administrative Discharge package and was missing elements of the Summary of Service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030207 by reason of hardship (A) with a service characterization of general (under 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).

According to the Marine Corps Separation and Retirement Manual, (MCO P1900.16F), an enlisted Marine may request voluntary separation from the Marine Corps subject to the procedures and criteria established by paragraph 6401 of the order.  The specific reason/basis for the Applicant’s discharge is hardship.  Hardship is one of the specific reasons for discharge that are listed under the Convenience of the Government general basis for separation.  The characterization of service of General (Under Honorable Conditions) is authorized when the discharge is by reason of hardship.

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.  A general (under 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 a retention warning and a nonjudicial punishment proceeding for violations of Articles 91 and 134 of the UCMJ.  The UCMJ considers violations of Articles 91 and 134 as serious offenses.  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 Veterans Administration determines eligibility for post-service benefits not the Naval 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 educational opportunities.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.

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 additional evidence related to this discharge.  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 P1900.16F), effective 
01 September 2001 until Present, paragraph 6407, DEPENDENCY OR HARDSHIP.

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, Para 211, Regularity of Government Affairs. 

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