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USMC | DRB | 1999_Marine | MD99-00695
Original file (MD99-00695.rtf) Auto-classification: Denied


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

ex-PVT, USMC
Docket No. MD99-00695

Applicant’s Request
The application for discharge review, received 990427, 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 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, authority: MARCORSEPMAN Par. 6210.2.


The NDRB did note an administrative error on the original DD Form 214. Block 1 NAME should read “H, Jy K” vice “HS, Je K”. Block 28, Narrative Reason for Separation should read: “MISCONDUCT (Minor disciplinary infractions (board required but waived)” vice “MISCONDUCT (DISCIPLINARY INFRACTIONS)”. The original DD Form 214 should be corrected or reissued as appropriate.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. I accept I deserved an OTH. At time of discharge, however since that day I have not broken any laws, got a good job and have had a son. Now I wish to go to college and need an Honorable to get loans.
Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

         Active: USMC              None
         Inactive: USMCR(J)                940818 - 950807  COG

 Period of Service Under Review :
Date of Enlistment: 950808               Date of Discharge: 980408

 Length of Service (years, months, days):

         Active: 02 08 01
         Inactive: None

 Age at Entry: 17                          Years Contracted: 4

 Education Level: 12                        AFQT: 54

 Highest Rank: LCPL

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.6 (9)              Conduct: 3.4 (9)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SSDR, Rifle Expert Badge (2 nd )

Days of Unauthorized Absence: None

 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 :

961209:  Counseled for deficiencies in performance and conduct, specifically your operating a motor vehicle without proper insurance documentation. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

970228:  NJP for violation of UCMJ, Article 92: Having knowledge of a lawful order issued by SSgt __ failed to do the same.
Awarded forfeiture of $258.00 per month for 1 month, restriction and
extra duties for 14 days. Forfeiture suspended for 3 months. Not appealed.

 970630:  NJP for violation of UCMJ, Article 86: UA from appointed place of duty from 0730,to 1100 970619.
         Award: Forfeiture of $244.00 per month for 1 month, restriction and extra duty for 14 days. Not appealed.
970731:  Counseled for deficiencies in performance and conduct, specifically failure to be at appointed place of duty and not using proper channels to take care of medical problems. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

971205:  Counseled for deficiencies in performance and conduct, specifically lack of responsibility, judgement, and constant failure to adhere to and follow orders and directives that are given from superiors. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

971202:  NJP for violation of UCMJ, Article 86: UA from 0530 to 0610 971117, and 2000 971120 to 0130 971121; violation of UCMJ Article 91: insubordinate conduct towards an NCO on 971124 and 971119 Award: Forfeiture of $505 per month for 1 month, restriction and extra duty for 30 days, reduction to E-2. Appealed

980126:  Counseled concerning medical status, specifically not following all medical instructions from the corpsman. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

980226:  NJP for violation of UCMJ, Article 86: UA from platoon formation at barracks 1604 during the period 0500, 980128 through 0715, 980128; violation of UCMJ Article 89: At 1st Lt.L_’s office at 1315, 980213, did slam door when leaving.
         Award: Forfeiture of $463 per month for 1 month, reduced to E-1. Forfeiture of $463 suspended for 3 months.

980317:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions as evidenced by numerous violations of the UCMJ to include UA (4 occasions), disobeying a lawful order (3 offenses), and disrespect towards an officer.
980317:          Applicant advised of his rights and having elected not to consult with 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.

980317:  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 the numerous violations of the UCMJ to include UA (4 occasions), disobeying a lawful order (3 offenses), and disrespect towards an officer.

980324:  SJA review determined the case sufficient in law and fact.

980330:  GCMCA [CG, MCB Hawaii] directed the applicant's discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 980408 under other than honorable conditions 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 introduced no decisional issues for consideration by the Board.

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 P1900.16E), effective 18 Aug 95until Present.

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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