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USMC | DRB | 2001_Marine | MD01-00277
Original file (MD01-00277.rtf) Auto-classification: Denied


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


ex-PFC, USMC
Docket No. MD01-00277

Applicant’s Request
The application for discharge review, received 010103, 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 010808. After a thorough review of the records, 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/INVOL DIS (BOARD WAIVED) (PATTERN OF MISCONDUCT), authority: MARCORSEPMAN Par. 6210.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION


Issues (verbatim)

1. I belive that my discharge was improper because it delt mostly with my weight and personal finances and because of that discharge I am being held back from proceeding with my enrollment into the Miami-Dade Police dept. which is why I am asking from this review so I can continue with my enrollment, and proceed to the Police academy. Thank you for your time.
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)                911220 - 920728  COG

 Period of Service Under Review :
Date of Enlistment: 920729               Date of Discharge: 950425

 Length of Service (years, months, days):
         Active: 02 08 27
          Inactive: None
Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 50
Highest Rank: PFC

 Final Enlisted Performance Evaluation Averages (number of marks):
Proficiency: 3.9 (7)                       Conduct: 3.6 (7)

 Military Decorations: None
Unit/Campaign/Service Awards: NDSM, SASM with 2 Stars, SSDR, AFEM

 Days of Unauthorized Absence: None
Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/INVOL DIS (BOARD WAIVED) (PATTERN OF MISCONDUCT), authority: MARCORSEPMAN Par. 6210.3.

 Chronological Listing of Significant Service Events :

940204:  Counseled for deficiencies in performance and conduct. [Failure to meet Marine Corps weight standards. Applicant failed to lose 30 pounds in 6 months.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
940526:  Counseled for deficiencies in performance and conduct. [Gaining 2 pounds in 16 days (May 6 - May 23, 1994. Fail the PFT run (score: 132). On 26 May 1994 body fat percentage was 30.3%, and your frequent involvement of a discreditable nature with military authorities.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
940601:  NJP for violation of UCMJ, Article 92:
 Specification: Failure to obey a lawful order on 1530, 26Apr94, to wit: to bring in financial paperwork.
 Awarded restriction and extra duties for 14 days. Restriction and extra duty for 7 days suspended. Not appealed.
940819:  Counseled for deficiencies in performance and conduct. [Financial stability and deployment planning to support dependents while deployed, financially.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
941125:  Counseled for deficiencies in performance and conduct. [Failure to comply with the UCMJ. Personnel finance mismanagement and repeated checks brought to attention of command; with non-sufficient funds, in his account and lack of documentation to reconcile his personal or affairs.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
941126:  NJP for violation of UCMJ, Article 123A:
 Specification: Wrongfully and unlawfully make a certain check upon the Navy Federal Credit Union to USS RUSHMORE disbursing officer for $270.00.
 Awarded forfeiture of $238.00 per month for 1 months, restriction and extra duties for 14 days. Forfeiture of $238.00 suspended for 6 months. No indication of appeal found in service record.
950124:  Counseled for deficiencies in performance and conduct. [Failure to comply with the UCMJ. Failure to make any progress towards meeting Marine Corps weight standards. Personal financial mismanagement and repeated checks brought to the attention of command; with non-sufficient funds, in his account and lack of documentation to reconcile his personal affairs, and your frequent involvement of a discreditable nature with military/civilian authorities.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
950130:  NJP for violation of UCMJ, Article 134 (2 specs):
 Specification 1: Make and utter to MWR Activity a check for $50.00 and thereafter dishonorably fail to maintain sufficient funds for payment of such check on 9Dec94.
 Specification 2: Make and utter to MWR Activity a check for $20.00 and thereafter dishonorably fail to maintain sufficient funds for payment of such check on 12Dec94.
 Awarded forfeiture of $479.00 per month for 2 months, restriction and extra duties for 30 days. Forfeiture suspended for 6 months. Not appealed.
950307:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.
950307:  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.
950309:  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 three nonjudicial punishments and two page 11 entries which have evinced a pattern of minor to serious infractions.

950322:  SJA review determined the case sufficient in law and fact.

 950328:  GCMCA [Commanding General, 1 st Marine Division (Rein), FMF] 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 950425 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, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (D and E).
In response to the applicant’s issue, 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. Furthermore, there has been no change in policy by the Navy, or higher authority, made expressly retroactive to the type of discharge received by the applicant. In addition, the Board has no obligation to change the applicant's discharge in order to allow him to obtain employment in law enforcement. 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 (E). 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) and certification of non-involvement with civil authorities (police records check) 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 P1900.16D), 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, failure to obey 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 “ afls10.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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