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USMC | DRB | 1999_Marine | MD99-00791
Original file (MD99-00791.rtf) Auto-classification: Denied


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

ex-PVT, USMC
Docket No. MD99-00791

Applicant’s Request
The application for discharge review, received 990520, requested that the characterization of service on the discharge be changed to general/under honorable conditions. 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 OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MARCORSEPMAN Par. 6210.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. My discharge was in equitable because I was placed on prednisone for a medical condition. The doctors at Camp Pendleton used the prednisone to treat my uvula, which became enlarged. They could not tell me why my uvula became enlarged. The doctor'’ orders was to complete the bottle of prednisone. When I left MCI, I was weighing 182 pounds. When I arrived at NAS-Pensacola, I weighed in at 195 pounds. After completing the medication and when I left NAS-Pensacola, I was weighing 217 pounds. I was in mandatory physical training every day and could not lose the weight until the date of my discharge. My weight fluctuated as I tried to lose the weight.
 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)                960823 - 961022  COG

 Period of Service Under Review :
Date of Enlistment: 961023               Date of Discharge: 980821

 Length of Service (years, months, days):

         Active: 01 09 29
         Inactive: None

 Age at Entry: 19                          Years Contracted: 5

 Education Level: 12                        AFQT: 69

 Highest Rank: PFC

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.5 (5)              Conduct: 3.4 (5)

 Military Decorations: None

 Unit/Campaign/Service Awards: Rifle Marksmanship Badge

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. 6210.3.

 Chronological Listing of Significant Service Events :

970905:  Counseled for deficiencies in performance and conduct, specifically for using poor judgement in your failure to show for room inspection on 970823 at 0800. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued
970930:  Counseled for deficiencies in performance and conduct, specifically for using poor judgement by being unauthorized absent from AV (A1) school from 970921 (2200) until 970922 (0615), mandatory PT on 970922 and 970915 (0500-0600). Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued
980402:  NJP for violation of UCMJ, Article 92: disobeyed lawful order onboard NAS Oceana, Va,.
         Award: Forfeiture of $463.00 per month for 1 month, and reduction to E-1, suspended for 2 months. Not appealed.
980403:  Counseled for deficiencies in performance and conduct, specifically your page 11 counseling entries for being UA from appointed place of duty and unsatisfactory progress on the weight control program, and one NJP. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued
980624:  NJP for violation of UCMJ, Article 86: UA from appointed place of duty 0600, 980528; violation of UCMJ Article 92: Failure to obey order or regulation in that SNM was ordered to obtain a servicable set of charlies and failed to do so.
         Award: Extra duty for 45 days, reduction to E-1. Not appealed.
980729:  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 five nonjudicial punishments and adverse page 11 entries”.
980729:          Applicant advised of his rights and having elected not to consult with counsel, elected to waive all rights.

980729:  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 his five nonjudicial punishments and adverse page 11 entries.

980812:  SJA review determined the case sufficient in law and fact.

980812:  GCMCA [CG, 2 nd MAW] 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 980821 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 under the impression that his discharge was as a result of weight control failure. The applicant is wrong. The Board found that the applicant was discharged for a pattern of misconduct, specifically for his two non-judicial punishments and his 3 adverse page 11 counseling entries, of which two were for being in a UA status. Clearly the applicant’s service conduct does not rate an upgrade in his discharge. 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 P1900.16E), effective 18 Aug 95 until 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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