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USMC | DRB | 1999_Marine | MD99-00966
Original file (MD99-00966.rtf) Auto-classification: Denied


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

ex-LCPL, USMC
Docket No. MD99-00966

Applicant’s Request
The application for discharge review, received 990709, 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 000310. 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 HONORABLE CONDITIONS(GENERAL)/MISCONDUCT, authority: MARCORSEPMAN Par. 6210.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.       I was informed that 6 months after a (General Under Honorable) conditions Discharge, my status would automatically upgrade.
2.       I have my DD 214 Copy attached. In any case block #29 was caused by car trouble even after communicating my problem to my superiors.
3.       At this time in my life I am still a Marine and I will continuously try to better myself. Thus, continuing my education,
4.       I am requesting that my General Discharge be changed to an Honorable discharge so that I may continue my education and receive the benefits that I initially enlisted for.
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)                891030 - 891107  COG

 Period of Service Under Review :
Date of Enlistment: 891108               Date of Discharge: 950221

 Length of Service (years, months, days):

         Active: 05 03 14
         Inactive: None

 Age at Entry: 19                          Years Contracted: 6

 Education Level: 12                        AFQT: 50

 Highest Rank: CPL

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.4 (18)             Conduct: 4.3 (18)

 Military Decorations: None

 Unit/Campaign/Service Awards: Rifle Expert Badge, NDSM, SSDR (1), MM, SWASM, COA, JMUA, HSM

Days of Unauthorized Absence: 5

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

UNDER HONORABLE CONDITIONS(GENERAL)/MISCONDUCT, authority: MARCORSEPMAN Par. 6210.3.

 Chronological Listing of Significant Service Events :

910313:  Counseled for your disobeying strict guidelines from Naval medical personnel, specifically being placed on limited duty for 1 week and not obeying that. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
911219:  NJP for violation of UCMJ, Article 86: On or about 1200, 1Dec91, was UA from formation and did not return until 0130, 4Dec91.
 Awarded forfeiture of $400.00 per month for 1 month, restriction and
extra duties for 45 days, reduced to E-2. Reduction and forfeiture of $250.00 per month for 1 month suspended for 3 months unless sooner vacated. Not appealed.

 920819:  Counseled for deficiencies in performance and conduct, specifically your developing a pattern of misconduct, specifically not being at the appointed place in time for duty. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued
940112:  NJP for violation of UCMJ, Article 86: UA from appointed place of duty to wit: 1201, 940103 to 1615, 940105.
         Award: Forfeiture of $289 per month for 1 month, suspended for 6 months unless sooner vacated. No indication of appeal in the record.

940203:  NJP imposed and suspended 940112 is hereby vacated and ordered executed.

940211:  NJP for violation of UCMJ, Article 86: UA from appointed place of duty to wit: 0701-1300, 940131.
         Award: Forfeiture of $289 per month for 1 month, restriction and extra duty for 14 days. Forfeiture suspended for 6 months unless sooner vacated. Not appealed.

941219:  NJP for violation of UCMJ, Article 86: failed to report to work after being relieved of duty, 941208; 941209, absent himself from his appointed place of duty on or about 0701 to wit: the S-3 section; absent from appointed place of duty, to wit: S-4 working party on or about 0531 to 0830 16Dec94.
         Award: Forfeiture of $552 per month for 2 months, restriction and extra duties for 45 days, reduced to LCPL. Forfeiture of $552 per month for 1 month suspended for 6 months unless sooner vacated. Not appealed.

941222:  Applicant notified of intended recommendation for discharge under honorable conditions (General) by reason of misconduct due to a pattern of misconduct as evidenced by your repeated offenses of the UCMJ.
941222:          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.

941222:  Commanding officer recommended discharge under honorable conditions (General) by reason of misconduct due to a pattern of misconduct. The factual basis for this recommendation was the “respondent’s frequent violations of the UCMJ, and repeated offenses of NJP”.

950127:  SJA review determined the case sufficient in law and fact.

950202:  GCMCA [CG, 2 nd FSSG] directed the applicant's discharge under honorable conditions (General) 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 950221 under honorable conditions (General) 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 2, the Board found that the applicant was not discharged because of one incident, car trouble, but for 4 NJP’s, 3 of which occurred within the last year of the applicant’s service. Relief denied.

The applicant wants to receive the education benefits that he believes he rates, issue 4. The Board found that on 891114 the applicant signed the statement of understanding that specified the requirements necessary to rate these benefits. This statement specifically states that one must receive an honorable discharge to use the G.I. Bill. The applicant’s service was not honorable, thus he is not qualified for this entitlement. Relief denied.

Issues 1 and 3 are without merit.

 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, DC 20374-5023       


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