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USMC | DRB | 1999_Marine | MD99-00726
Original file (MD99-00726.rtf) Auto-classification: Denied


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

ex-CPL, USMC
Docket No. MD99-00726

Applicant’s Request
The application for discharge review, received 990504, requested that the characterization of service on the discharge be changed to general/under honorable conditions and the RE code changed. The applicant requested a documentary record discharge review. The applicant did not list a representative on his 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 OTHER THAN HONORABLE CONDITIONS/Misconduct – Minor disciplinary infractions (administrative discharge board required but waived), authority: MARCORSEPMAN Par. 6210.2.

The NDRB did note an administrative error on the original DD Form 214. Block 12a, Date Entered AD this Period should read “87 03 19” vice “84 10 17”; block 12 c, Net Active Service This Period should read: “04 07 13” vice “07 00 14”; block 12 d Total Prior Active Service should read “02 05 02” vice “02 09 08”. The original DD Form 214 should be corrected or reissued as appropriate.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.       Change my reenlistment code to one suitable for Reserve, Nat. Guard or active duty.
2.       Enter all medals and award due to me in my SRB and issue the same to me.
3.       An updated copy of my SRB/HR/DR be sent to me.
4.       Rein state all VA benefits and consider reinstating and issuing all or part of the separation denied me.
 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214
 Ltr from applicant to Congressman C__  

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              841017 - 870318  HON
         Inactive: USMCR(J)                820810 - 841016  COG

 Period of Service Under Review :
Date of Enlistment: 870319               Date of Discharge: 911031

 Length of Service (years, months, days):

         Active: 04 07 13
         Inactive: None

 Age at Entry: 19                          Years Contracted: 6

 Education Level: 10                        AFQT: 59

 Highest Rank: CPL

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.4 (19)             Conduct: 4.3 (19)

 Military Decorations: NAM

 Unit/Campaign/Service Awards: MM (3), GCM, OR, Rifle Expert Badge (2), Pistol Expert Badge,

Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – Minor disciplinary infractions (administrative discharge board required but waived), authority: MARCORSEPMAN Par. 6210.2.

 Chronological Listing of Significant Service Events :
871130:  Counseled for deficiencies in performance and conduct, specifically lack of progress in improving my military appearance; attempting to circumvent the chain of command to be excused from remedial physical training; lack of leadership by example, attention to detail, and loyalty in dealing with my guard sections meal fund, lack of aggressive leadership and motivation in training my guard section to perform its mission and failure to fully assume the responsibilities of an NCO. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

880125:  NJP for violation of UCMJ, Article 86: absent from duty as Duty NCO, violation of UCMJ Article 92: Disobeyance of a lawful order: the omitance of drinking alcohol prior to 12 hours before going on duty, UCMJ Article 134: overindulgence in intoxicating liquor, incapacitated for the proper performance of his duties, UCMJ Article 134: drunk and disorderly conduct.
         Award: Forfeiture of $446.00 per month for 2 months, reduction to E-3. Reduction and forfeiture suspended for 6 months. Not appealed.

880323:  Suspension of NJP awarding reduction to E-3 suspended on 880125, is hereby vacated and the punishment is ordered executed.

880323:  Counseled for deficiencies in performance and conduct, specifically lack of proper care of military equipment, poor judgment and
irresponsibilities as a Marine. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
881103:  Counseled for deficiencies in performance and conduct, specifically failure to pay debts in a timely manner. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

890222:  NJP for violation of UCMJ, Article 134: write one check to the DO for a value of $700 and dishonorably fail to maintain sufficient funds to cover said check.
         Award: Restriction for 60 days, reduction to E-2. Reduction suspended for 60 days. No indication of appeal in the record.

890402:  Remaining portion of sentence pertaining to restriction awarded at NJP on 890222 is hereby remitted this date without further action.

910725:  NJP for violation of UCMJ, Article 108 (3 Specs):
 1 st Specification: On or about Aug 89 wrongfully sell government,
2 nd Specification: On or about 891110 wrongfully sell government property,
3 rd Specification: On or about 900303 wrongfully sell government property.
         Award: Forfeiture of $500 per month for 2 months, reduction to E-3. Forfeiture of all but $1.00 is hereby suspended for a period of 6 months. Not appealed.
910725:  Counseled for deficiencies in performance and conduct, specifically unsatisfactory performance and minor disciplinary infractions. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

911007:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions as evidenced by 3 NJP’s.
911007:          Applicant advised of his rights and having elected not 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.

000000:          Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
000000:  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 other than honorable conditions.

911007:  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 three NJP’s on 25 Jan 88, 17 Feb 89, and 9 Jul 91.

91101X:  SJA review determined the case sufficient in law and fact.

911018:  GCMCA [2 nd MARDIV] 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 911031 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).

In the applicant’s issue 1, c oncerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reentry into the naval service or any other of the Armed Forces. The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy or Marine Corps. Reenlistment policy of the naval service is promulgated by the Commandant, United States Marine Corps, Code MMEA, 3280 Russell Road, Quantico, VA 22134. Neither a less than fully honorable discharge nor an unfavorable "RE" code is, in itself, a bar to reenlistment. A request for a waiver is normally done only during the processing of a formal application for enlistment through a recruiter. Relief, is therefore, denied.

In the applicant’s issue 2, the Board found that the Head of the Military Awards Branch, Human Resources Division, CMC sent a letter, dated 13 Nov 1992, to the applicant that addressed this issue. Relief denied.

In issue 3, the applicant requests his SRB/HR/DR be sent to him. The Board does not mail copies of these documents to anyone. The applicant needs to request these from the National Personnel Records Center, (Military Personnel Records), 9700 Page Boulevard, St Louis, Mo. 63132. Relief denied.

In issue 4, the Board has no authority to reinstate VA benefits. That responsibility rests with the Veterans Administration. 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 P1900.16D), 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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