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USMC | DRB | 2000_Marine | MD00-00331
Original file (MD00-00331.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD00-00331

Applicant’s Request
The application for discharge review, received 000112, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a personal appearance hearing before a traveling panel closest to (left blank). 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 000824. 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 (verbatim)

 1. (Equity Issue) This former member proffers that his UOTHC discharge is to harsh because he had preexisting anger problem that the UCMC fostered, his command was racially prejudiced and because he has been denied VA benefits due to his discharge.

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:
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                831222 - 840724  COG

 Period of Service Under Review :
Date of Enlistment: 840725               Date of Discharge: 880204

 Length of Service (years, months, days):

         Active: 03 06 10
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 48

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.6 (7)                       Conduct: 4.2 (7)

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR, MM

 Days of Unauthorized Absence: 3

 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 :

840103:  Counseled for deficiencies in performance and conduct. [Cashing of worthless check and financial irresponsibility.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued
851219:  NJP for violation of UCMJ, Article 92:
 Specification: Failure to obey lawful order to wit: squadron order 1700.1 storage of beer in barracks #460.
Awarded forfeiture of $358.00 per month for 2 months, reduction to PFC. Reduction suspended for 3 months. Not appealed.
860103:  Counseled for deficiencies in performance and conduct. [Check cashing privilege aboard the areas or camps of Marine Corps Base Camp S. D. Butler is revoked for a period of six months as of 851217.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued
860430:  NJP for violation of UCMJ, Article 89:
 Specification: Disrespect toward a superior commissioned officer on 22Apr96.
Awarded restriction 45 days, reduction to PFC. Not appealed.
860709:  NJP for violation of UCMJ, Article 91:
 Specification: Disrespect toward a superior noncommissioned officer on 3Jul86 and striking a superior noncommissioned officer on 4Jul86.
Awarded forfeiture of $295.00 per month for 1 month, reduction to Pvt. Not appealed.
870522:  NJP for violation of UCMJ, Article 86 (2 specifications):
 Specification: Absent from appointed place of duty from 0700, 29Apr87 to 1300, 4May87.
Specification 2: Absent from appointed place of duty 0530-0730, 15May87.
Awarded restriction for 60 days, reduction to Pvt. Not appealed.
870603:  Counseled for deficiencies in performance and conduct. [Frequent involvement with military authorities.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued
871217:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 86 (2 specifications):
         Specification 1: Absent from appointed place of duty on 21Nov87 to 24Nov87.
         Specification 2: Absent from appointed place of duty 0700-0900, 3Dec87.
         Finding: to Charge I and the specifications thereunder, guilty.
         Sentence: Confinement for 15 days followed by restriction and hard labor without confinement for 15 days.
         CA action 871217: Sentence approved and ordered executed.

880122:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.
880122:          Applicant advised of his rights and having elected not to consult 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.

880122:  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 summary court-martial conviction of 17 December 1987, his nonjudicial punishments of 19 December 1985, 30 April 1986, 9 July 1986 and 22 May 1987, and his adverse page11 entries of 3 January 1986 and 3 June 1987

880126:  SJA review determined the case sufficient in law and fact.

880128:  GCMCA [Commanding General, 2d Marine Division, Fleet Marine 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 880204 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 that the discharge was not too harsh taking into account the applicant’s service record and conduct. The applicant was counseled twice, had a record of 4 CO’s NJPs and a Summary Court Martial. Three of the applicant’s four NJPs were court martiable offenses. The applicant may have had a “preexisting anger problem’ but this does not excuse the fact that the applicant had some considerable misconduct, to include striking a superior officer.
The applicant also states that his command was “racially prejudiced” but 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 its issuance, and that his rights were prejudiced thereby. The applicant is responsible for his actions and must accept the consequences of his misdeeds. The Board will not grant relief on the basis of this issue.

There is no law or regulation that provides for the upgrade of an unfavorable discharge based solely on the passage of time, or good conduct in the civilian life subsequent to leaving the Service. However, the Board is authorized to consider post-service factors in the recharacterization of a discharge (D). Those factors include, but are not limited to, the following: evidence of continuing educational pursuits (transcripts, diplomas, degrees, vocational-technical certificates), a verifiable employment record (Letter of Recommendation from boss), documentation of community service (letter from the activity/community group), certification of non-involvement with civil authorities (police records check) and proof of his not using drugs (detoxification certificate, AA meeting attendance or letter documenting participation in the program) in order for consideration for clemency based on post-service conduct. At this time, the applicant has not provided any documentation of good character and conduct. Therefore no relief will be granted. The applicant is encouraged to continue with his pursuits and is reminded that he is eligible for a personal appearance hearing provided the application is received within 15-years from the date of discharge.

 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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