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USMC | DRB | 2000_Marine | MD00-00193
Original file (MD00-00193.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD00-00193

Applicant’s Request
The application for discharge review, received 991122, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a personal appearance discharge review. The applicant listed the Veteran's of Foreign Wars as his representative on the DD Form 293. In the acknowledgement letter to the applicant, the applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000831. 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 CONDITIONS OTHER THAN HONORABLE/Misconduct-Civilian Conviction (admin discharge board required but waived, authority: MARCORSEPMAN Par. 6210.7.



PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1. Dear DRB,
Underwritten you will find a few issues why I feel that my discharge should be changed to a Honorable discharge. First I was within approximately 75 days of completion of my tour of duty. My youth and immaturity along with lack of disipline caused me to act unbecoming of a Marine. I received a civilian conviction resulting from a relationship gone bad. This, along with improper representation; I found myself pleading guilty to something that under todays standards probably would result in a 100% turnaround. As of today 12 years later, this is one void that I have to at least try and fill. I can go on and on but maybe I can look the board eye to eye one day and explain my case.

2. 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 factors
•         Prior to the incident that led to discharge, the applicant had proven himself to be a good Marine. Reference the award of the Good Conduct Medal.
•         The applicant has demonstrated good post service conduct. He has completed an Auto Mechanics Course for which he received a Vocational Education Certificate from the Maryland State Department of Education. He is a volunteer and an active member of the NAACP.
3. We ask the Board to consider the applicant's case IAW SECNAV Instruction 5420.174C of 22 August 1984 (MDR 1984), enclosure (1), chapter 9, paragraph 9.2, Propriety of Discharge.


 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214
Copy of Certificate of Appreciation from Veterans Group 500
Copy of Certificate of Vocational Educational Certificate dated July 21, 1993
Nineteen pages from applicant's service/medical record

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                830125 - 830630  COG

 Period of Service Under Review :
Date of Enlistment: 830701               Date of Discharge: 871006

 Length of Service (years, months, days):

         Active: 04 03 06
         Inactive: None

 Age at Entry: 17                          Years Contracted: 4

 Education Level: 12                        AFQT: 50

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.1 (8)                       Conduct: 3.7 (8)

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR (2), GCM

 Days of Unauthorized Absence: XX

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

UNDER CONDITIONS OTHER THAN HONORABLE /Misconduct-Civilian Conviction (admin discharge board required but waived), authority: MARCORSEPMAN Par. 6210.7

 Chronological Listing of Significant Service Events :


850528:  NJP for violation of UCMJ, Article 91:
 Specification: Behave himself in a disrespectful manner toward Cpl on 2230, 11May85.
NJP for violation of UCMJ, Article 92
Specification: Disobey a lawful order issued by Cpl NYS military police, to wit: Ordered LCpl back into the care, LCpl refusing to do so and using profanity.
Awarded forfeiture of $150.00 per month for 1 month, restriction and extra duties for 14 days. Forfeiture suspended for 6 months. Not appealed.
850529:  Counseled for deficiencies in performance and conduct. [Disrespect towards NCO, disobeying lawful order and violations of Uniform Code of Military Justice.] Applicant advised that incident could result in an administrative separation.

850813:  Counseled for deficiencies in performance and conduct. [Misconduct, fighting in barracks.] Applicant advised that incident could result in an administrative separation.

861126:  Special Court-Martial.
         Charge I: violation of the UCMJ, Article 89 (2 specifications):
         Specification 1: Disrespectful to commissioned officer.
         Specification 2: Disrespectful to commissioned officer.
         Charge II: violation of the UCMJ, Article 90:
         Specification: Disobey order from commissioned officer
         Charge III: violation of the UCMJ, Article 91:
         Specification 1: Disobey order from Staff noncommissioned officer
         Findings: to Charge I, II and III and specifications thereunder, guilty.
         Sentence: Forfeiture of $200.00 per month for 6 months, CHL for 120 days, reduction to Pvt.
         CA 870220: Sentence approved and ordered executed.

 861126:  Applicant to confinement.

870305:  Applicant from confinement.

870520:  Applicant apprehended and in hands of civilian authorities.

870623:  Applicant released from hands of civilian authorities.

 870727:  Applicant convicted in Superior Court Division, Onslow County, NC of common law robbery. [Extracted from CO's letter dated 17 September 1987.]
         Sentence: Unknown.
870727:  Applicant to confinement (civilian authorities).

 870820:  Applicant notified of intended recommendation for discharge under condition other than honorable by reason of misconduct due to civilian conviction.
870914:          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.

870917:  Commanding officer recommended discharge under condition other than honorable by reason of misconduct due a civilian conviction. The factual basis for this recommendation was civilian conviction in the Superior Court Division, Onslow County, North Carolina on 27 July 1987 for common law robbery.

870924:  SJA review determined the case sufficient in law and fact.

 871005:  Applicant from confinement (civilian authorities).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 871006 under conditions other than honorable for misconduct due to a civilian conviction (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 no legal basis to agree with the applicant’s assertion that his civilian conviction in the Superior Court, Onslow County, North Carolina on 27 July 1987 for common law robbery, “…under todays (sic) standards probably would result in a 100% turnaround.”. Relief denied.

In the applicant’s Issue 2, the applicant’s representative (VFW) requested the Board to consider the following factors:
Prior to the incident that led to discharge, the applicant had proven himself to be a good Marine. Reference the award of the Good Conduct Medal.
The applicant has demonstrated good post service conduct. He has completed an Auto Mechanics Course for which he received a Vocational Education Certificate from the Maryland State Department of Education. He is a volunteer and an active member of the NAACP.

The Board disputes the claim the applicant had proven himself to be a good Marine. The Chronological Listing of Significant Service Events above lists Non-judicial punishment, counseling for deficiencies in performance and conduct, and a Special Court-Martial all prior to the conviction in the Superior Court of Onslow County. The award of a Good Conduct Medal on 860630 predates the most serious offenses documented in the applicant’s service records. Relief denied.

 In the applicant’s Issue 3, the applicant’s representative asks the Board to consider the applicant's case IAW SECNAV Instruction 5420.174C of 22 August 1984 (MDR 1984), enclosure (1), chapter 9, paragraph 9.2, Propriety of Discharge.

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 with no impropriety.

The following is provided for the applicant’s edification. 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 civilian life subsequent to leaving the service. Normally, to permit relief, an error or injustice must be found to have existed during the period of enlistment in question. However, the NDRB is authorized to consider post-service factors in the recharacterization of a discharge. 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. In determining whether a case merits a change based on post-service conduct, the NDRB considers the length of time since discharge, the applicant's record of community service, employment, conduct, educational achievements, and family relationships. The applicant's efforts need to be more encompassing than those provided. The applicant should have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, and certification of non-involvement with civil authorities in order for consideration for clemency based on post-service conduct. At this time the applicant has not provided sufficient documentation of good character and conduct. Therefore no relief will be granted.

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 P1900.16C, 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 view DoD Directive 1332.28 and other Decisional Documents by going online at “ afls14.jag.af.mil ”.

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
                  720 Kennon Street SE Rm 309
                  Washington Navy Yard DC 20374-5023      


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