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USMC | DRB | 2000_Marine | MD00-00892
Original file (MD00-00892.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD00-00892

Applicant’s Request
The application for discharge review, received 000705, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a documentary record discharge review. The applicant did not list any representative on the DD Form 293. Subsequent to the applicant, the applicant obtained representation by the Veterans of Foreign Wars.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010615. 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 am a law abiding citizen. I've been married 7 yrs & 8 mos. I have two children, and work for International papers in MS. I would like to better myself by going to college part time, and also building a home for my family. I may not be eligible for a VA loan, but money was taken from my leave and earning statement. I would like to have some of that so I can go to college, better myself, and make life a little more comfortable for my family. If possible, yes I would like to apply for a VA loan also. In the eyes of many people, I am still considered a veteran. I was in the Gulf during the war. I also served in Lyberia.

2. We ask the board to consider the applicant's entire period of service with emphasis on his participation in operations in Liberia and Desert Storm. We contend that his discharge is to hard and ask that it be upgraded accordingly.


 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214 (Member 1)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                890519 - 890607  COG

 Period of Service Under Review :
Date of Enlistment: 890608                        Date of Discharge: 920626

 Length of Service (years, months, days):

         Active: 03 00 19
         Inactive: None

 Age at Entry: 17 Parental Consent                Years Contracted: 4

 Education Level: 12                                 AFQT: 50

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.1 (8)                                Conduct: 3.9 (8)

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR (2), NDSM, Letter of Appreciation, JMU, SASM with 1 Star, MCEM

 Days of Unauthorized Absence: 6

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 :

900228:  NJP for violation of UCMJ, Article 86:
 Specification: Absent from appointed place of duty from 1901, 19Feb90 to 1400, 22Feb90 (2 days), to wit: rifle range.
Awarded forfeiture of $189.00 per month for 1 month, correctional custody for 7 days with suspension for duty. Correctional custody suspended for 6 months. Not appealed.
900510:  Vacate correctional custody for 7 days.

910510:  NJP for violation of UCMJ, Article 86:
 Specification: Absent from appointed place of duty from 1201, 16Apr90 to 0600, 17Apr90, to wit: CO L, BLT 3/8.
Awarded Correctional custody for 7 days. Not appealed.
910622:  NJP for violation of UCMJ, Article 92 (2 specs):
 Specification 1: Violated BO P5560.2J by driving on a base revocation of driving privileges on 1603, 19Apr91.
Specification 2: Violated MCO 5110.1C by fraudulently using a temporary visitor's pass on 1603, 19Apr91.
Violation of UCMJ, Article 107:
Specification: False official statement on 1615, 19Apr91, to wit: I am not in the military.
Awarded forfeiture of $204.00 per month for 1 month, restriction and extra duties for 7 days. Restriction suspended for 6 months. Not appealed.
920130:  Counseled for deficiencies in performance and conduct. [Financial irresponsibility, specifically, failure to pay debts on time, failure to maintain a checkbook register, and failure to keep any financial records what so ever.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued
920219:  NJP for violation of UCMJ, Article 86 (3 specs):
 Specification 1: Fail to go at the time prescribed to appointed place of duty on 0801, 31Jan92, to wit: 8 th Marines messhall.
Specification 2: Fail to go at the time prescribed to appointed place of duty on 1231, 31Jan91, to wit: 8 th Marines messhall
Specification 3: Fail to go at the time prescribed to appointed place of duty on 1401, 31Jan91, to wit: Barracks 105, 3d Battalion, 8 th Marines area.
Violation of UCMJ, Article 92:
Specification: Violated B05560.2J by driving on based while having a revoked driver's license on 2350, 25Jan92.
Awarded forfeiture of $482.00 per month for 2 months, correctional custody for 30 days, reduction to PFC. Not appealed.
920220:  Counseled for deficiencies in performance and conduct. [Frequent involvement with the UCMJ as evidenced by four nonjudicial punishments.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued
920305:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 91 (3 specs).
         Specification 1: Disobeyed order from CWO.
         Specification 2: Disobeyed order from SSgt.
         Specification 3: Disobeyed order from Sgt.
         Charge II: violation of the UCMJ, Article 92.
         Specification: Violated MCO 1020.34 by wearing an earring.
         Finding: to Charge I and II and the specifications thereunder, guilty.
         Sentence: Forfeiture of $523.00, confinement to hard labor for 30 days, reduced to Pvt.
         CA action 920312: Sentence approved and ordered executed.

920427:  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 on 5 March 1992 and his four nonjudicial punishments.

920505:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.
920505:          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.

920601:  SJA review determined the case sufficient in law and fact.

920601:  GCMCA [Commanding General, 2d Marine Division, Fleet Marine Force, Camp Lejeune] directed the applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

 920617:  NJP for violation of UCMJ, Article 86:
 Specification 1: Unauthorized absence 1201, 9Jun92 to 2358, 13Jun92 (4 days).
Awarded forfeiture of $183.00 per month for 1 month, restriction and extra duties for 14 days. Not appealed.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 920626 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 introduced no decisional issues for consideration by the Board. The applicant emphasized his request for an upgrade to an Honorable characterization of his discharge is based on his desire for VA benefits. The Board is under no obligation to upgrade a discharge in order for the applicant to benefit from VA programs. Relief on this basis is denied.

In considering the applicant’s issues, the Board disagrees with his assertion that his overall service record warrants an honorable discharge. When a Marine’s service has been honest and faithful, it is appropriate to characterize that service as honorable. Under other than honorable conditions is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record. T he applicant’s service was marred by award of nonjudicial punishment (NJP) for offenses triable by court-martial on four occasions, a Summary Court-martial and several adverse counseling entries. The applicant’s misconduct included violations of Articles 86, unauthorized absence; 91, disrespect and disobedience of a lawful order; 92, disobedience of a lawful order or regulation; and Article 107, making a false official statement. Further, the applicant was counseled for financial irresponsibility and failure to pay just debts. The applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful disobedience of the orders and directives which regulate good order and discipline in naval service, and falls short of that required for an honorable characterization of service. An upgrade to honorable would be inappropriate. Relief is therefore 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. Verifiable proof of any post-service accomplishments must be provided in order for the applicant to claim post-service conduct and behavior as a reason to upgrade a less than Honorable discharge. 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 but not mandatory.

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 92, disobedience of a lawful order.

 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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