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USMC | DRB | 2000_Marine | MD00-00890
Original file (MD00-00890.rtf) Auto-classification: Denied


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

ex-PVT, USMC
Docket No. MD00-00890

Applicant’s Request
The application for discharge review, received 000705, requested that the characterization of service on the discharge be changed to general/under honorable conditions. 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 020101. 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 (administrative discharge board required but waived), authority: MARCORSEPMAN Par. 6210.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. I have submitted the application to change my discharge from under other than honorable to general for the reason: My discharge was based on the fact that I could not be discharged "Hardship" and my family needed me. My unauthorized absence was the cause of this and I would have finished my remaining 8 months only, which I proudly served for 3yrs 8mos and received a certificate of commendation, along with others. It has been 7 years and would like to have the honor of having a general discharge thank you, semper fi I accepted an OTH to provide for my family.

 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: USMC              None
         Inactive: USMCR(J)                881028 - 890808  COG

 Period of Service Under Review :
Date of Enlistment: 890809               Date of Discharge: 930104

 Length of Service (years, months, days):

         Active: 03 03 06
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 46

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.44 (10)            Conduct: 4.1(10)

 Military Decorations: None

 Unit/Campaign/Service Awards: Rifle Expert Badge, NDSM, SASMw2*, SSDRw1*, KLM, NUC

Days of Unauthorized Absence: 51

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

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

 Chronological Listing of Significant Service Events :

900130:  NJP for violation of UCMJ, Article 86: UA 1000, 900116 2045, 900118.
 Awarded forfeiture of $189.00 per month for 1 month, restriction for 14 days. Not appealed.
920225:  NJP for violation of UCMJ, Article 86: UA (AWOL) from 1300, 920217 to 2000, 920223.
 Awarded Restriction and extra duties for 14 days. Not appealed.
920603:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 86, (2 Specifications),
         Specification 1: UA from 0701, 920417-920521, Specificaiton 2: UA from 0800, 920522-920530; Charge II: violation of the UCMJ, 87, Specification 1: Missed the movement of USS KITTY HAWK 0701, 920511.
         Finding: to Charge I and the specifications 1 and 2 thereunder, guilty; to Charge II and specifications 1 thereunder, guilty.
         Sentence: Confinement for 24 days, 3 days Bread & Water, forfeiture of $523.00, reduced to E-1.
         CA action 920622: Sentence approved and ordered executed.

920610:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.
920610:  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.

920616:  Commanding Officer, Marine Detachment, USS Kitty Hawk (CV-63) to Commanding General, Fleet Marine Force, Pacific via Commanding Officer, Marine Corps Security Force Battalion Pacific requesting applicant be administratively separated from the U .S. Marine Corps for reason of misconduct by reason of a pattern of misconduct.

920730:  Commanding Officer, Marine Corps Security Force Battalion, Pacific to Commanding Officer, Marine Detachment, USS Kitty Hawk (CV-63) indicating applicant can not be discharged under paragraph 6210.3 of the reference until he has been properly counseled per paragraph 6105 of the reference.

920801:  Counseled for deficiencies in performance and conduct. [Repeated offenses of the UCMJ; specifically: Art. 86, UA (AWOL)] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued

920924:  Affidavit from Capt R____ C. S_____ notarized indicating applicant was counseled on 920225 and 920624 for failure to be at his appointed place of duty at the proper time and to conduct himself in accordance with the UCMJ.

920924:  Affidavit from First Sgt E____ J. R_____ notarized indicating applicant was counseled on 920225 and 920624 for failure to be at his appointed place of duty at the proper time and to conduct himself in accordance with the UCMJ.

921016:  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 your nonjudicial punishments held on 900125 for violation of article 86 of the UCMJ and 920225 fro violation of article 86 of the UCMJ and in addition, your conviction by summary courts martial on 920603 for violation of article 86 of the UCMJ. Commanding officer’s comments: [(verbatim), if appropriate]:

921029:  SJA review determined the case sufficient in law and fact.

921106:  GCMCA [Commander, Marine Forces Pacific] 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 930104 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).

The applicant submitted no decisional issues. Further, the Board disagrees with the applicant’s statement, “My discharge was based on the fact that I could not be discharged “Hardship” and my family needed me.” The applicant’s discharge was based on his pattern of misconduct represented by two Non-judicial Punishments, a Summary Court-Martial, and three adverse counseling entries in his Service Record Book. Relief denied.

The Board found that the applicant’s age, education level, test scores, and family dependent status all qualified him for enlistment. While he may feel that his family was a factor that contributed to his actions, the record clearly reflects his willful disregard for responsibility and the requirements of military discipline and demonstrated that he was unfit for further service. The record is devoid of evidence that the applicant sought relief through his chain of command or that he was not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.

The following is provided for the applicant’s edification. The NDRB is authorized to consider 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. However, there is no law or regulation that 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 be found to have existed during the period of enlistment in question. No such error or injustice is evident in the applicant’s service record. 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 P1900.16D), effective 27 Jun 89 until 17 Aug 95.

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 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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