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USMC | DRB | 1999_Marine | MD99-00546
Original file (MD99-00546.rtf) Auto-classification: Denied


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

ex-Cpl, USMC
Docket No. MD99-00546

Applicant’s Request
The application for discharge review, received 990308, requested that the characterization of service on the discharge be changed to honorable. The applicant requested 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 000207. 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 HONORABLE CONDITIONS (GENERAL)/Misconduct – Minor disciplinary infractions (with admin discharge board), authority: MARCORSEPMAN Par. 6210.2.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1. I have since left the U.S.M.C. worked for M_ D_ in Long Beach, CA. Now that I am laid off I am pursuing to further my education in the Aerospace Industry and would like some help with the GI Bill. But the only way I can get help is if my discharge is upgraded. I got an Honorable on my first (1st) Enlistment but that was before July 1 of 1985. If my discharge is upgraded I will be eligible for benefits so I can continue my education. Anything you can do for me will be highly appreciated.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Letter from Department of Veterans Affairs to applicant dated February 5, 1999
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              821117 - 860429  HON
         Inactive: USMCR(J)                821029 - 821116  COG

 Period of Service Under Review :
Date of Enlistment: 860430               Date of Discharge: 890626

 Length of Service (years, months, days):

         Active: 03 01 27
         Inactive: None

 Age at Entry: 22                          Years Contracted: 4

 Education Level: 11                        AFQT: 40

 Highest Rank: Cpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.6 (7)                       Conduct: 3.9 (7)

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR, GCM, Letter of Appreciation, MUC, NUC

 Days of Unauthorized Absence: None

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

UNDER HONORABLE CONDITIONS (GENERAL)/Misconduct-Minor disciplinary infractions (with admin discharge board), authority: MARCORSEPMAN Par. 6210.2.

 Chronological Listing of Significant Service Events :

881208:  Counseled for deficiencies in performance and conduct. [Leaving fuel farm #5 unsecured; windows left open, vehicles not secured and keys left in trucks. Also unauthorized absence for 28 minutes.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
881209:  Counseled for deficiencies in performance and conduct. [Your unsafe operation of a vehicle driving 79 mph in a 55 mph zone on 880608.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
890213:  Counseled for deficiencies in performance and conduct. [Derelict in the performance of your duties by negligently leaving Fuel Farm #555 unattended, which resulted in 15 gallons of JP-5 being spilled.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
890302:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 86.
         Specification: Fail to go at the time prescribed to appointed place of duty on 0600, 13Dec88.
         Charge II: violation of the UCMJ, Article 92:
         Specification: Fail to obey lawful order on 14Nov88, to wit: wrongfully failing to clean his weapon on three consecutive days.
         Charge III: violation of the UCMJ, Article 121 (3 specs).
         Specification 1: Wrongfully use VISA account of Sgt on 2Aug88 by telephonic communications in the amount of $97.61
         Specification 2: Wrongfully use VISA account of Sgt on 2Aug88 by telephonic communications in the amount of $236.23.
         Specification 3: By telephonic communications wrongfully steal a lawn vacuum/blower, a value of $92.77 the property of the Cablevision Network Shopping Channel.
         Charge IV: violation of the UCMJ, Article 134.
         Specification: Make a wrongful and unlawful official statement on 29Sep88.
         Finding: to Charge I, II, III and IV and the specifications thereunder, guilty.
         Sentence: Forfeiture of $524.00, confinement for 30 days, reduced to LCpl. Appealed on 890417. No further information located in service record.
         CA action 890309: Sentence approved and ordered executed.

890302:  Applicant to confinement.

890323:  Applicant from confinement.

 890404:         Applicant informed eligible but not recommended for promotion to Sergeant for the months of April, May, and June 1989 because of a recent page 11.

 890410:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions.
890414:          Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
890410:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions. The factual basis for this recommendation was a summary court-martial and three 6105 page 11 entries.

890509:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed misconduct due to minor disciplinary infractions, that the misconduct warranted separation, and recommended discharge under honorable conditions (general).

890519:  Counseled for deficiencies in performance and conduct. [Failing to check in with your unit after securing from an additional duty as an augmentee with PMO for the 1989 NRF Air Show.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued. Applicant refused to sign for counseling and has submitted a rebuttal.
890523:  SJA review determined the case sufficient in law and fact.

890530:  GCMCA [Commander, Marine Corps Air Bases, Western Area El Toro, CA] directed the applicant's discharge under honorable conditions (general) by reason of misconduct due to minor disciplinary infractions.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 890626 under honorable conditions (general) for misconduct due to minor disciplinary infractions (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 only issue is that he desires an upgrade to become eligible for the G.I. Bill. The applicant’s service record reveals the applicant was briefed on the G.I. Bill, specifically, that an honorable discharge after completion of 36 months of active duty would be required for entitlement to benefits. The Board commends the applicant’s desire for continued self-improvement through further education. However, to upgrade a discharge for the sole purpose of benefits eligibility is not appropriate for this Board. Relief is denied.

The following is provided for the applicant’s edification. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge (E). The applicant must be aware that 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, may be considered by the NDRB. The applicant is reminded that he is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge.

Pertinent Regulation/Law (at time of discharge)

 A. Paragraph 6210 MISCONDUCT , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16C, Change 4, effective 29 Jul 87 until 26 Jun 89.

 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.
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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