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USMC | DRB | 1999_Marine | MD99-00522
Original file (MD99-00522.rtf) Auto-classification: Denied


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

ex-PFC, USMC
Docket No. MD99-00522

Applicant’s Request
The application for discharge review, received 990302, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a documentary record discharge review. The applicant listed the American Legion as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000110. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service. 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-Pattern of misconduct (administrative discharge board required but waived), authority: MARCORSEPMAN Par. 6210.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1. (EQUITY ISSUE) While this former member recognizes and regrets his misconduct of record, he nonetheless avers that his UOTHC discharge is to harsh given the nature and circumstances surrounding his offenses. He opines that release under honorable conditions is warranted.

2. (EQUITY ISSUE) This former member further requests that the Board include provisions of SECNAVINST 5420.174C., enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of his application.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Job reference undated
Request for review of individual's criminal history record
Character reference from applicant's grandfather dated October 22, 1998
Copy of police record check dated October 16, 1998
Character reference from applicant's aunt dated October 21, 1998
Copy of Decree granting change of name of adult dated August 5, 1994

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                910522 - 911210  COG

 Period of Service Under Review :
Date of Enlistment: 911211               Date of Discharge: 940225

 Length of Service (years, months, days):

         Active: 02 02 15
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 70

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.4 (7)                       Conduct: 4.0 (7)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, Letter of Appreciation

 Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct-Pattern of misconduct (administrative discharge board required but waived), authority: MARCORSEPMAN Par. 6210.3.

 Chronological Listing of Significant Service Events :

930920:  NJP for violation of UCMJ, Article 86 (3 specs):
 Specification 1: Fail to report to Orders section on 1630, 31Aug93.
Specification 2: Unauthorized absence 1631, 31Aug93 to 2330, 1Sep93.
Specification 3: Fail to be at appointed place of duty on 1400, 10Sep93.
Violation of UCMJ, Article 87:
Specification: Miss movement on 0245, 13Sep93.
Awarded forfeiture of $438.00 per month for 1 month, reduction to PFC. Reduction to PFC suspended for 6 months. Not appealed.
930920:  Counseled for deficiencies in performance and conduct. [Unauthorized absence from your appointed place of duty on two different occasions.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued
931104:  Vacate suspended reduction to PFC awarded at CO's NJP dated 20Sep93.

931104:  NJP for violation of UCMJ, Article 86: Failed to be at his appointed place of duty on 0730, 29Oct93.
         Award: Extra duty for 14 days, reduction to Pvt. Reduction suspended for 6 months. No indication of appeal in the record.
931104:  Counseled for deficiencies in performance and conduct. [Failing to be at the appointed place of duty at the time prescribed.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

931212:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.
931213:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct. Commanding officer’s comments verbatim: SNM has had 2 counselings and 2 NJP's for Art. 86. The first was to avoid PCS orders and the second was a result of his failure to be accountable for his actions. SNM has shown himself to be unsuitable and unavailable for the requirements of the Marine Corps. SNM has voiced suicidal ideations to the chaplain, in an effort to avoid PCS orders to Twenty Nine Palms. His orders were subsequently withdrawn by CMC as a result. SNM has shown minimal leadership abilities, requiring constant supervision for the simplest of tasks. I recommend that this Marine be separated from the Marine Corps with an Other Than Honorable characterization of service.

940104:          Applicant advised of his rights and having elected spoken to 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.

940125:  SJA review determined the case sufficient in law and fact.

940128:  GCMCA [Commanding General, 3d Marine Aircraft Wing] 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 940225 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).

The applicant’s representative submitted the following as issue 1: (EQUITY ISSUE) While this former member recognizes and regrets his misconduct of record, he nonetheless avers that his UOTHC discharge is to harsh given the nature and circumstances surrounding his offenses. He opines that release under honorable conditions is warranted. The Board disagrees. In a three month period the applicant received 2 NJP’s for UA. Clearly the applicant’s violations of the UCMJ warrant nothing more than the discharge he was issued.

The applicant’s representative submitted the following as issue 2: (EQUITY ISSUE) This former member further requests that the Board include provisions of SECNAVINST 5420.174C., enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of his application. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge (B, Part IV). However, 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 the civilian life subsequent to leaving the service. Normally, to permit relief, an error or injustice must have been found to have existed during the period of enlistment in question. Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review, is considered. The applicant provided no such documentation. The applicant should have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs in order for consideration for clemency based on post-service conduct. At this time the applicant has not provided sufficient documentation of good character and conduct. Therefore no relief will be granted. He is encouraged to continue with his pursuits and is reminded that he is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge. Relief denied.



Pertinent Regulation/Law (at time of discharge)

 A. Paragraph 6210, Misconduct , of the Marine Corps Separation and Retirement Manual, ( MCO P1900.16D), effective 27 Jun 89 until 17 Aug 95.

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 [ e.g., 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 obtain a copy of DoD Directive 1332.28 by writing to:
                  DA Military Review Boards Agency
                  Management Information and Support Directorate
                  Armed Forces Reading Room
                  Washington, D.C. 20310-1809

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
                  Washington Navy Yard
                  720 Kennon St SE Rm 309
                  Washington, D.C. 20374-5023     


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