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USMC | DRB | 1999_Marine | MD99-01114
Original file (MD99-01114.rtf) Auto-classification: Denied


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

ex-LCpl, USMC
Docket No. MD99-01114

Applicant’s Request
The application for discharge review, received 990812, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed to secretarial authority. The applicant requested a personal appearance hearing in the Washington National Capital Region. The applicant listed the Veterans of Foreign Wars as his representative on the DD Form 293. The applicant failed to respond by the deadline date to a letter requiring the applicant to notify the Naval Discharge Review Board of intention to be present for the requested personal appearance hearing. Therefore, a documentary review was conducted.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000424. 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-Pattern of misconduct (admin discharge board required but waived), authority: MARCORSEPMAN Par. 6210.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1. I believe my discharge should be upgraded to Honorable. The presumption of regularity that might normally permit you to assume that the service as less than Honorable does not apply to my case because of the evidence I am submitting. If you disagree, please explain m detail.

1. My record of NJPs/ARTICLE 15s indicates only isolated or minor offenses.
a) My record of AWOL/UA indicates only minor or isolated offenses.

b) My average conduct and efficiency ratings/behavior and proficiency marks are pretty good.

c) I received awards and decorations.

d) I was also being considered at that time for promotion.

2. Medical or Physical problems I had impaired my ability to serve.
a) I tried to serve and wanted to.

b) When I got back from overseas, I just couldn't adjust to stateside duty and I also
requested to go back to overseas when asked for volunteers but was denied.

3. I was so close to finishing my tour that it was unfair to give me a bad discharge.
a) I have been a good citizen since discharge.
b) I had physical problems that impaired my ability to serve and I had requested to
be looked and was ignored.

4. IAW SECNAV Instruction 5420.174C of 22 August 1984 (MDR 1984), enclosure (1), chapter 9, paragraph 9.3, Equity of Discharge, we ask the Board to consider the following factor(s):

•         The applicant's service prior to the incident that led to discharge was good. Reference applicant's award of meritorious mast.
5. We ask the Board to consider the applicant's case IAW SECNAV Instruction 5420.174C of 22 August 1984 (NOR 1984), enclosure (1), chapter 9, paragraph 9.2, Propriety of Discharge.

The Veterans of Foreign Wars of the United States' express purpose in providing this statement, and any other submittals or opinions of record, is to aid the applicant in resolving any improprieties or inequities in the character and basis for discharge. After reviewing all available evidence, we ask the Board to resolve any doubt in favor of the applicant and to grant the action requested as entitled under Title IO U. S.C., Section 1553.

Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
None

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                820127 - 820131  COG

 Period of Service Under Review :
Date of Enlistment: 820201               Date of Discharge: 840810

 Length of Service (years, months, days):

         Active: 02 06 10
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 56

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.2 (6)                       Conduct: 3.9 (6)

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR, MM

 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 :

830629:  Counseled for deficiencies in performance and conduct. [Lack of self-responsibility in that he failed to attend a scheduled Co P.T. session. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
830630:  Counseled for deficiencies in performance and conduct. [Marginal performance of duties and below average conduct as a Marine.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
830714:  Applicant counseled on page 11 entry but was not counseled on his rights of the UCMJ, Article 138, or the U.S. Regs Article 1110 in reference to the entries dated 870307 (830626 and 830630).
830719:  Counseled for deficiencies in performance and conduct. [Late for formation. Also counseled for failure to go to sickbay 830708 when told to do so by his NCOIC.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
840326:  NJP for violation of UCMJ, Article 121 (2 specs):
 Specification 1: During the following times and on the following dates make wrongful appropriated telephone calls 1859, 840110, 2046, 840112, 1052, 840115.
Specification 2: On the following dates did wrongfully charge telephone calls to Sgt's home phone, valued at $28.35, 840110, 840112, 840115.
Awarded forfeiture of $160.00 per month for 1 month, restriction for 8 days. Not appealed.
840330:  Counseled for deficiencies in performance and conduct. [Lack of self-responsibility, marginal performance of duties, wrongful appropriated and charge telephone calls.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued
840511:  NJP for violation of UCMJ, Article 134 (2 specs):
 Specification 1: False statement on 1100, 840504 to Cpl, to wit: I have to report to the rifle range detail at 1300.
Specification 2: False statement on 0710, 840509 to Cpl, to wit: I did go to the range snapping in session yesterday afternoon".
Awarded forfeiture of $100.00 per month for 1 month, restriction and extra duties for 7 days. Forfeiture of $50.00 pay per month for 1 months and restriction and extra duty for 7 days suspended for 3 months. Not appealed.
840511:  Counseled for deficiencies in performance and conduct. [Your poor conduct in dealing with NCO's and your tendency to violate orders, and other guidance given by competent authority.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued
840525:  Counseled for deficiencies in performance and conduct. [Further incidents of misconduct may result in an administrative discharge for frequent involvement with military authorities.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
840702:  Vacate suspended forfeiture of $50.00 for 1 month and restriction and extra duty for 7days.
840702:  NJP for violation of UCMJ, Article 86:
 Specification: Fail to go at the time prescribed to his appointed place of duty, to wit: Remedial Physical training at 1130, 20Jun84.
Violation of UCMJ, Article 91 (2 specs):
Specification 1: During morning formation was disrespectful in language and manner toward Cpl on 21Jun84, to wit: "It's none of your damn business."
Specification 2: During morning formation was disrespectful in language and manner toward Cpl on 21Jun84, to wit: "Shut up" and by contemptuously turning away from and leaving Cpl's presence without his consent.
Awarded forfeiture of $150.00 per month for 1 month, restriction and extra duties for 14 days. Not appealed.
840731:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.
840727:          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.

840731:  SJA review determined the case sufficient in law and fact.

840801:  GCMCA [Commanding General, I Marine Amphibious Force] 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 840810 under other than honorable conditions for misconduct due to a pattern of misconduct (A). The Board presumed regularity in the conduct of governmental affairs (B). 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 (C and D).

 Responding to the applicant’s first issue, the Board found nothing in the records, nor did the applicant provide anything to indicate or to show that there exists an error of fact, law, procedure, or discretion, associated with his discharge at the time of issuance, and that his rights were prejudiced thereby. Also, the Board disagreed with the applicant’s contention that his offenses were minor or isolated. Relief is therefore denied.

A medical diagnosis, whether proper or improper is not an issue upon which the NDRB can grant relief. When reviewing a discharge, the NDRB does consider the extent to which a medical problem might effect an applicant’s performance and ability to conform to the military’s standards of conduct and discipline. The NDRB sees no connection between the applicant’s misconduct and his medical condition. Relief is not warranted.

Concerning the applicant’s concern that it was unfair to discharge him so close to the end of his enlistment, the Board does not consider this an issue upon which relief will be granted.

 The applicant's representative submitted the following issue: (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. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, 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, is considered. The applicant provided no documentation of his post-service.








Pertinent Regulation/Law (at time of discharge)

 A. Paragraph 6210 MISCONDUCT , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16C), Change 2, effective 15 Apr 84 until 28 Jul 87.

B. 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.

C. 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.

D. 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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