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USMC | DRB | 1999_Marine | MD99-00793
Original file (MD99-00793.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD99-00793

Applicant’s Request
The application for discharge review, received 990520, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed to Secretarial Authority and change RE code to RE-1. The applicant requested a documentary record discharge review. The applicant listed the American Legion as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000410. 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.

The NDRB did note an administrative error on the original DD Form 214. Block 24, Character of Service should read: “UNDER OTHER THAN HONORABLE CONDITIONS” vice “OTHER THAN HONORABLE”. Block 28, Narrative Reason for Separation should read: “MISCONDUCT” vice “INVOL DIS (BOARD WAIVED) (PATTERN OF MESCONDUCT)”. The original DD Form 214 should be corrected or reissued as appropriate.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. (EQUITY ISSUE) This former member avers that his UOTHC discharge is inequitable his lawyer did not properly advise him; his good job performance was not considered; and the characterization was to harsh for his offenses. On this basis, he opines that upgrade to full honorable with a narrative reason change to Secretarial Authority is warranted.

2. (EQUITY ISSUE) This former member further requests that the Board include provisions of SECNAVINST 5420.174C., enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of his application.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
American Legion's comments dated 2 March 2000
Copy of DD Form 214
Statement from applicant
PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                950512 - 950522  COG

 Period of Service Under Review :
Date of Enlistment: 950523               Date of Discharge: 980211

 Length of Service (years, months, days):

         Active: 02 08 19
         Inactive: None

 Age at Entry: 18                          Years Contracted: 5

 Education Level: 12                        AFQT: 35

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.3 (9)                       Conduct: 4.1 (9)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SSDR, MM

 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 :

951010:  Counseled for deficiencies in performance and conduct. [Lack of motivation, attention to detail, self-discipline and use of poor judgement. Specific reason for counseling] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued
970318:  Counseled for deficiencies in performance and conduct. [Uttering/delivering checks without having sufficient funds in the bank for the payment of such check. Also failure to make payment to past due debtors.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued
970514:  NJP for violation of UCMJ, Article 134:
 Specification: Utter checks of worthless value and failing to pay debts.
Awarded Restriction for 60 days, reduction to PFC. Not appealed.
971030:  Counseled for deficiencies in performance and conduct. [Uttering four bad checks between 19Aug97 and 25Sep97.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued
971223:  Counseled for deficiencies in performance and conduct. [Unofficial use of telephone. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued
971223:  Counseled for deficiencies in performance and conduct. [To avoid financial hardship, applicant should reside in the squadron barracks.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued
971224:  NJP for violation of UCMJ, Article 86:
 Specification: Unauthorized absence 1200-2200, 971219.
Awarded Restriction and extra duties for 45 days, reduction to Pvt. Not appealed.
971230:  NJP for violation of UCMJ, Article 90:
 Specification: Willfully disobey superior commissioned officer by leaving bil and base on or about 1800 and 2200 971226.
Violation of UCMJ, Article 123:
Specification: Falsely sign his restriction papers for the DNCO, for the 2200 and 2145 musters on 971226
Violation of UCMJ, Article 134:
Specification: Knowingly break restriction from 2000, 971226 to 1100, 971227.
Awarded forfeiture of $505.05 per month for 1 month. Forfeiture suspended for 3 months. Not appealed.
971231:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.
971231:          Applicant advised of his rights and having consulted 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.

971231:  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 three (3) office hours and three page 11 entries.

980204:  GCMCA [Commanding General, 3d Marine Aircraft Wing] 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 980211 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 the applicant had 3 NJP’s for conduct prejudicial to good order and discipline. He was counseled 4 times and afforded an opportunity to overcome his deficiencies, but failed to do so. The applicant’s record warrants nothing higher than the discharge he was issued. 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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