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USMC | DRB | 1999_Marine | MD99-01081
Original file (MD99-01081.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD99-01081

Applicant’s Request
The application for discharge review, received 990809, requested that the characterization of service on the discharge be changed to general/under honorable conditions. The applicant requested a personal appearance hearing before the board in the Washington National Capital Region. The applicant did not list any representative on the DD Form 293.

Decision
A personal appearance hearing discharge review was conducted in Washington, D.C. on 000412. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety but did discern inequity in the characterization of the applicant’s service. The Board’s vote was unanimous that the character of the discharge shall change. The discharge shall change to: HONORABLE /Secretarial Authority, authority: MARCORSEPMAN Par. 6210.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

 1. I would like the Board to take into consideration at that time my age and also the fact that being in CA was the first time I was totally alone without my family members for support or guidance.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of letter of appreciation dated 6 May 1988
Copy of certificate for completion of Radio Fundamentals course dated 29 April 1988
Copy of certificate for completion of Basic Electronics Course dated 11 January 1988
Copy of meritoriously promotion to Private First Class dated 2 July 1987
Copy of promotion to Lance Corporal dated 1 March 1988
Character reference dated February 2, 2000
Copy of certificate of achievement dated 25 June 1999
Copy of certificate of achievement dated 9 December 1998
Copy of deed to home
Copy of daughter’s report card

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USAR              850611 - 850818  HON
         Inactive: USMCR(J)                860926 - 870506  COG

 Period of Service Under Review :
Date of Enlistment: 870507               Date of Discharge: 880928

 Length of Service (years, months, days):

         Active: 01 04 22
         Inactive: None

 Age at Entry: 19                          Years Contracted: 5

 Education Level: 12                        AFQT: 85

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.2 (5)                       Conduct: 3.6 (4)

 Military Decorations: None

 Unit/Campaign/Service Awards: None

Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct-Pattern of misconduct (admin discharge board required but waived), authority: MARCORSEPMAN Par. 6210.3.

 Chronological Listing of Significant Service Events :

880705:  NJP for violation of UCMJ, Article 86:
 Specification: Unauthorized absence on 0530, 880622 from appointed place of duty.
Violation of UCMJ, Article 91:
Specification: Violation of a lawful order on 0700, 880623, of a SNCO by not removing the window tint from the front windows of his POV as he was ordered to do so.
Awarded forfeiture of $182.00 per month for 1 month. Not appealed.
880713:  NJP for violation of UCMJ, Article 86:
 Specification: Absent from appointed place of duty on 0530, 880711.
Awarded forfeiture of $376.00 per month for 2 months. Forfeiture suspended for 6 months. Not appealed.
880714:  Counseled for deficiencies in performance and conduct. [Your frequent involvement with military authorities.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued
880715:  Counseled for deficiencies in performance and conduct. [Gross financial irresponsibility by having checks returned to the MCX with insufficient funds in the account and on an account that has been closed.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued
880802:  Vacate forfeiture of $376.00 for 2 months awarded at NJP dated 880713.

880802:  NJP for violation of UCMJ, Article 86:
 Specification 1: Absent from appointed place of duty on 0900, 880724.
Specification 2: Absent from appointed place of duty on 0600, 880725.
Violation of UCMJ, Article 134:
Specification: Make 8 checks for a total of $1,185.00 to MCX with insufficient funds on 880604, 880628, 880630, 880706, 880708, 880710 and 880712
Awarded forfeiture of $315.00 per month for 2 months, reduction to Pvt. Not appealed.
880823:  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 frequent involvement of a discreditable nature with military authorities as evidenced by your 3 NJP's.
880823:          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.

880825:  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 frequent involvement of a discreditable nature with military authorities as evidenced by your 3 NJP's.

880908:  SJA review determined the case sufficient in law and fact.

880912:  GCMCA [Commanding General, Marine Corps Air Ground Combat Center, Twentynine Palms, CA] directed the applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

 891130:  NDRB documentary record review Docket Number ND89-01395 conducted. Determination: discharge proper and equitable; relief not warranted.


PART III – RATIONALE FOR DECISION AND PERTINENT
REGULATION/LAW

Discussion

The applicant was discharged on 880928 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, although proper and equitable at the time of issuance, is not currently considered equitable in light of the applicants post-service conduct (D and E).

In response to applicant’s issue 1, the Board, after reviewing the applicant’s post service conduct, grants clemency relief as authorized under provisions of SECNAVINST 5420.174C, enclosure (1), paragraph 9.3. The Board determined that the applicant’s post-service warranted an Honorable discharge. The Board also determined that the applicant’s discharge was harsh for his offenses and that the reason for discharge be changed to Secretarial Authority.

Pertinent Regulation/Law (at time of discharge)

 A. Paragraph 6210, MISCONDUCT , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16C), Change 4, effective 29 Jul 87 until 26 Jun 89.

 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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