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USMC | DRB | 2000_Marine | MD00-00894
Original file (MD00-00894.rtf) Auto-classification: Denied


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

ex-PVT, USMC
Docket No. MD00-00894

Applicant’s Request
The application for discharge review, received 000707, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a documentary record discharge review. The applicant listed AMERICAN LEGION as his 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, authority: MARCORSEPMAN Par. 6210.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. (Equity Issue) This former member opines that personal and family problems sufficiently mitigated his misconduct of record to warrant separation under honorable conditions.

2. (Equity Issue) This former member further requests that the Board include provision 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:
Letter from Applicant
Copies of DD Form 214 (3)
Copy of Sgt Promotion Authority Letter
Copy of Certificate of Good Conduct
Copy of Proficiency/Conduct ratings
Copy of Service Schools/Special Skill Schedule

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              None
         Inactive: USMCR(J)                940705 - 950618  COG

 Period of Service Under Review :
Date of Enlistment: 950619               Date of Discharge: 990617

 Length of Service (years, months, days):

         Active: 03 11 29
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4 (10 months extension)

 Education Level: 12                        AFQT: 32

 Highest Rank: Sgt

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.05 (12)            Conduct: 3.9(12)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, Meritorious Mast, NAM, MUC, GCM, SSDR, Rifle Expert Badge (3 rd )

Days of Unauthorized Absence: None

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

OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MARCORSEPMAN Par. 6210.3.

 Chronological Listing of Significant Service Events :

951012:  Counseled concerning unsatisfactory training progress, has not attended and completed training but did not meet minimum standards required for graduation. Areas on non-mastery include Physical Tactical, aspects of MCT.

980903:  NJP for violation of UCMJ, Article 86: On or about 980813, failed to go at the time prescribed to morning formation at 0700, violation of UCMJ Article 86: failed to go at the time prescribed to the motor pool at 0600, 980814, violation of UCMJ Article 86: On or about 980828 failed to go at the time prescribed to morning formation at 0515.
         Award: Forfeiture of $731 per month for 2 months, restriction for 60 days. Not appealed.

981001:  NJP for violation of UCMJ, Article 86: On or about 1300, 980907 without authority failed to go at the time prescribed, to restriction muster with the 3d SptBn Officer of the Day, violation of UCMJ Article 86: On or about 2145, 980910 without authority failed to go at the time prescribed, to restriction muster with the 3d SptBn Officer of the Day.
         Award: Forfeiture of $731 per month for 2 months (forfeiture of $731.00 per month for 1 month suspended for 6 months), restriction for 60 days. Not appealed.

981019:  NJP imposed and suspended on 981007 for a period of 6 months is hereby vacated and the punishment is ordered executed.

981020:  Counseled for deficiencies in performance and conduct. [Failure to display professional conduct and disobedience of order, specifically, you were repeatedly UA from your appointed places of duty and broke restriction orders. You were the subject of one company NJP and two battalion NJP's. After being given explicit directions on your responsibility for restriction muster and your limitation of travel on base, you repeatedly disobeyed your company and battalion commanders orders. You also continued being UA from various places of duty. Your lack of professionalism, utter disregard of order, and unreliability will not be tolerated] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

981020:  NJP for violation of UCMJ, Article 92: At 3d SptBn, Camp Foster on 981011 Cpl T____ was seen by the OD at the Eagle, Globe and Anchor while on restriction; violation of UCMJ Article 86: At 3d SptBn, MTCo, On or about 981018 Cpl T_____ was UA from his appointed place of duty from 0900-0944 at bldg 5692, Restriction check in with the OD; violation of UCMJ Article 92: At 3d SptBn, MTCo, on or about 981018 Cpl T___ was seen at the PX which is in violation of restriction orders issued 981007.
         Award: Forfeiture of $591.00 per month for 2 months, restriction for 40 days, reduction to E-3. No indication of appeal in the record.

990301:  Counseled for deficiencies in performance and conduct. [Losing his identification card on 990224 at 1640] , sources of assistance provided, disciplinary and discharge warning issued

990301:  Counseled for deficiencies in performance and conduct. [Losing his meal card on 990224 at 1640], sources of assistance provided, disciplinary and discharge warning issued

990421:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 86(4 Specifications),
         Specification 1: On or about 1250, 990317, without authority, failed to go at the time prescribed to his appointed place of duty to wit: building 5649 for an accountability formation, Specification 2: On or about 1115, 990318, without authority, failed to go at the time prescribed to his appointed place of duty to wit: building 5649 for an accountability formation, Specification 3: On or about 2300, 990406, without authority, failed to go at the time prescribed to his appointed place of duty to wit: building 5654, 3d Support Battalion Motor Pool, Specification 4: On or about 0500, 990407, without authority, failed to go at the time prescribed to his appointed place of duty to wit: company PT formation at barracks 5718. Charge II: violation of the UCMJ, Article 107(3 Specifications), Specification 1: On or about 990223 with intent to deceive, sign an official document, to wit: the Motor Transportation Company log book stating he was going to the Mental Health Department at U.S. Naval Hospital, Camp Lester, Okinawa Japan, which record was totally false, Specification 2: On or about 990304 with intent to deceive, sign an official document, to wit: the Motor Transportation Company log book stating he was going to the Mental Health Department at U.S. Naval Hospital, Camp Lester, Okinawa Japan, which record was totally false, Specification 3: On or about 990311 with intent to deceive, sign an official document, to wit: the Motor Transportation Company log book stating he was going to the Mental Health Department at U.S. Naval Hospital, Camp Lester, Okinawa Japan, which record was totally false. Charge III: violation of the UCMJ, Article 123: On or about 990109, with intent to defraud and for the procurement of lawful currency or a thing of value, wrongfully and unlawfully make and utter to Shogun Inn, Kadena Air Base, Okinawa Japan, a certain check in the amount of $108.00 upon the Community Bank
         Finding: to Charge I and the specification thereunder, guilty.
         Sentence: Confinement for 30 days, forfeiture of $639.00 pay per month for 1 month, reduced to E-1.
 CA action 990422: Sentence approved and ordered executed.
990506:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.
990506:          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.

990510:  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 repeated incidents of misconduct. Over the past year he has had three Non Judicial Punishments (NJP's) for unauthorized absence (UA), violating restriction and a Summary Court Martial for UA, signing a false offical document and uttering a bad check.

990520:  SJA review determined the case sufficient in law and fact.

990527:  GCMCA [Commander, 3d Force Service Support Group] 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 990617 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 no evidence in the review of the records to support the applicant’s assertions he unsuccessfully sought relief from personal and family problems. The applicant was a Sergeant of Marines at the time of the offenses which led to his reduction and subsequent discharge. As an NCO responsible for leading by example, he should have known the relief available to a Marine through the chain of command. However, the record reflects that far from serving as an example to his juniors and subordinates, the applicant abused the trust the Marine Corps placed in him and his actions significantly degraded the morale of his unit and were contrary to good order and discipline. 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 P1900.16E), effective 18 Aug 95 until Present.

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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