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USMC | DRB | 1999_Marine | MD99-00567
Original file (MD99-00567.rtf) Auto-classification: Denied


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

ex-PVT, USMC
Docket No. MD99-00567

Applicant’s Request
The application for discharge review, received 990317, 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 Disabled American Veterans his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 991213. 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 (with admin discharge board) authority: MARCORSEPMAN Par. 6210.3.




PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.       I do not belive that I should receive an other than honorable discharge for taking a poncho. The officer in charge states that we could keep anything we wanted of the old gear that was taken out of the building.
2.       I belive that the discharge should be change so I may obtain V.A. Benefits. I want to return to school and buy my own home.
 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214
 Ltr dated Aug 11, 1999 from DAV
Ltr dated Mar 3, 1999 from DAV
Character ref dated Jul 17, 1999 from Ms___
Character ref dated Jul 17, 1999 from Ms ___
Character ref dated Jul 20, 1998 from Ms ___
Character ref dated May 27, 1998 from Ms ___
Ltr from applicant dated Dec 1, 1998   

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              000000 - 000000  HON
         Inactive: USMCR           860319 - 860331  COG

 Period of Service Under Review :
Date of Enlistment: 860401               Date of Discharge: 880219

 Length of Service (years, months, days):

         Active: 01 10 18
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

Education Level: 12                        AFQT: 68

 Highest Rank: PFC

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.6 (5)              Conduct: 3.3 (5)

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 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 (with admin discharge board), authority: MARCORSEPMAN Par. 6210.3.

 Chronological Listing of Significant Service Events :

861002:  NJP for violation of UCMJ, Article 92: derelict in the performance of his duties by failing to properly secure his rifle.
 Awarded forfeiture of $100.00 per month for 1 month, and
extra duties for 14 days. Not appealed.

870512:  Counseled for deficiencies in performance and conduct. [Failure to report to appointed place of duty at the appointed time] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

870514:  Counseled, not recommended for promotion to LCPL because of frequent involvement with military authorities.

870519: Counseled for deficiencies in performance and [Insubordinate conduct toward authorities and failure to follow instruction]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

870522 :         Counseled for deficiencies in performance [Failure to comply with Marine Corps uniform regulations]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

870605:  NJP for violation of UCMJ, Article 86: Failed to go at the time prescribed to formation; violation of UCMJ Article 91: Willfully disobeyed GySgt ___’s order by playing music during working hours.
         Award: Forfeiture of $150.00 per month for 1 month, 7 days correctional custody. Correctional custody suspended for 3 months. Not appealed.

870623:  NJP for violation of UCMJ, Article 90: Disobeyed direct order from 2ntLt ___ not to operate a motor vehicle aboard base; violation of UCMJ Article 92: Violated base order by illegally operating motor vehicle while on revocation.
         Award: Forfeiture of $150.00 per month for 1 month, correctional custody for 7 days. Not appealed.

870731:  Counseled for deficiencies in performance [Financial irresponsibility, failure to maintain sufficient funds and uttering bad checks].

870917:  Summary Court-Martial for NJP violation of UCMJ, Article 121: Stole 2 poncho liners.
         Awarded forfeiture of $438.00 for 1 month, CHL for 30 days and reduction to PVT.

870924   CA approved sentence with the exception of the reduction to PVT which is suspended for 6 months.
871214:  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 summary court-martial conviction of 17 September, 1987, your nonjudicial punishments of 2 October, 1986, 5 June 1987, and 23 June 1987, and your adverse page 11 entries of 8 May 1987, 19 May 1987, 22 May 1987, 8 July 1987 and 27 July 1987”.

871215:          Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
880121:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed misconduct due to a pattern of misconduct, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

871216:  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 “the respondent’s court-martial conviction of 17 September 1987, his nonjudicial punishments of 2 October 1986, 5 June 1987, and 23 June 1987, and his adverse page 11 entries of 8 May 1987, 19 May 1987, 22 May 1987, 8 July 1987 and 27 June 1987”.

880208:  SJA review determined the case sufficient in law and fact.

880222:  GCMCA [CG, 2 nd Marine Division] directed the applicant's discharge the characterization as warranted by service records.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 880219 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).

In the applicant’s issue 1, the Board found that the applicant was not discharged for stealing poncho liners, as he alleges, but for 3 NJP’s, 5 page 11 adverse counseling entries and one summary court martial (stealing 2 poncho liners); clearly a pattern of misconduct. Relief denied.

The applicant wants relief to enable him to use his V.A. benefits. The applicant is not entitled to these benefits because he failed to serve the required 3 years. Relief 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. Representation at personal appearance hearing is highly recommended.


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 [ 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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