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USMC | DRB | 2001_Marine | MD01-00279
Original file (MD01-00279.rtf) Auto-classification: Denied


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

ex-LCpl, USMC
Docket No. MD01-00279

Applicant’s Request
The application for discharge review, received 010108, 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 designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020320. 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 HONORABLE CONDITIONS (GENERAL)/Convenience of the Government, Review Action, Punitive discharge set aside, suspended, remitted or disapproved (without administrative discharge board), authority: MARCORSEPMAN Par. 6203.4.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. I would like my discharged changed to honorable so that I can qualify for the Montgomery G.I. bill. Now, I'll be the first to admit that there are some things in my SRB that I'm not proud of. Things like cheating on a test, and then there was the time hat I broke my ankle on a Sunday playing basketball but, that's another story. The reason for my discharge was even silly. I'm trying to say that at the time of my enlistment I was young and immature, made a lot of mistakes and bad decisions. If I knew then what I know now, I'd probably still be enlisted. But, in time passed. I have since then matured, gotten married, have two children (M_ - 14, R_ - 8), a good job and etc. There are a lot of positive influences in my life now and I want to keep that momentum going.
Basically, I'm asking that whoever reads this just be neutral, objective, give the benefit of doubt, and be open-minded that a person can change for the better. I've always had this desire to return to school and now have the will and determination to return to school to better myself and help to better my family. These are the reasons that I'm asking that the review board look at my records and be objective and change the status of my discharge. Thank you for taking the time out to review and considered my request. I hope to hear from the review board soon. *P.S.* If my discharge is changed, Will I receive a copy of the DD214 stating the change?

 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)                880210 - 880712  COG

 Period of Service Under Review :
Date of Enlistment: 880713               Date of Discharge: 931018

 Length of Service (years, months, days):

         Active: 05 03 06 (Doesn't exclude confinement/appellate leave.)
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

Education Level: 12                        AFQT: 50

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.1 (10)             Conduct: 4.0 (10)

 Military Decorations: None

 Unit/Campaign/Service Awards: Rifle Marksman Badge, NDSM, SSDR (1 Star), SWASM (2 Stars), LoA, KLM

 Days of Unauthorized Absence: None

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

UNDER HONORABLE CONDITIONS (GENERAL)/Convenience of the Government, Review Action, Punitive discharge set aside, suspended, remitted or disapproved (without administrative discharge board), authority: MARCORSEPMAN Par. 6203.4.

 Chronological Listing of Significant Service Events :

890310:  NJP for violation of UCMJ, Article 86: failed to go at the time prescribed, 0400, 890225 to Bld 303 for duty w/the Camp Guard and failed to go at the time prescribed, 2200, 890308, to Bld M-607 for fire/security watch.
 Awarded forfeiture of $200.00 per month for 2 months, restriction
for 14 days. Not appealed.
890310:  Counseled for deficiencies in performance and conduct [Article 86, UCMJ, failed to go at the time prescribed 0400, 890225 for duty w/the Camp Guard and failed to go at the time prescribed, 2200, 890308 for fire/security watch]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

900110:  Counseled for deficiencies in performance and conduct [failure to be at appointed place of duty which is section formation]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

900314:  Counseled for deficiencies in performance and conduct [lack of responsibility as evidenced by not paying telephone bill by due date]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

900330:  NJP for violation of UCMJ, Article 121: on 900306, wrongfully appropriated a Nissan Bluebird, the property of JSRL. K. K., Okinawa Car Rental, valued at 450,000 yen.
 Awarded forfeiture of $196.00 per month for 1 month, forfeiture of $98.00 pay per month for 1 month (suspended for 6 mos), restriction and
extra duties for 14 days. Not appealed.
900418:  Counseled for deficiencies in performance and conduct [military infraction]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

910716:  Counseled for deficiencies in performance and conduct [being late at an appointed place of duty, lack of responsibility and lackadaisical attitude]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

911010:  Counseled for deficiencies in performance and conduct [inability to obey orders and instructions given by members of command - did purchase alcohol at an unauthorized location during CAX 10-91].

920115:  Special Court-Martial.
         Charge I: violation of the UCMJ, Article 123a:
Specification: intent to defraud
          Add Chg I: violation of the UCMJ, Article 91 (2 specifications):
         Specification 1: disobedience of a lawful order
         Specification 2: disobedience of a lawful order
         Add Charge II: violation of the UCMJ, Article 86:
         Specification: unauthorized absence from 1301 - 1530 on 18 Nov 91
         Findings: to Charge I and specification - not guilty, but guilty to the LIO Article 134 - dishonorable failure to maintain funds)
 To Add Change I and specifications thereunder - not guilty
To Add Charge II and specification thereunder, guilty.
         Sentence: Confinement Hard Labor for 2 months, forfeiture of $300.00 per month for 4 months, reduction to E-1, and a bad conduct discharge.
         CA 920527: Sentence approved and ordered executed except for the BCD.

920202:  To confinement, Sentence of SPCM. [EXTRACTED FROM DD214]

920303:  From confinement, to duty. [EXTRACTED FROM DD214]

920319:  To appellate leave.

920902:  NC&PB denied clemency and restoration.

930322:  NMCCMR: Set aside the findings of guilty of the added Charge, Article 134 and its sole supporting specification and set aside the sentence. The same or a different convening authority may order a rehearing on the charge and its specification and the sentence, which is conditionally set aside for the purpose of rehearing. If the convening authority determines that a rehearing on the Charge and its specification is impracticable, he may dismiss the Charge and its specification, and order a rehearing on the sentence only. If the convening authority determines that a rehearing on the sentence likewise is impracticable, the convening authority may reassess the sentence.

931018:  SSPCMO: Special Court-Martial Convening Authority Action and Order No. GB003-92, 8 th Motor Transport Battalion, 2d Force Service Group, Fleet Marine Force, Atlantic, dated 27 May 92, is hereby amended in accordance with instructions from the NMCCMR and the action taken by predecessor in command is withdrawn. The following is substituted therefore: The finding of guilty to the charge and the specification thereunder is set aside. The sentence is hereby reassessed so that only so much of the previously adjudged sentence as provides for 30 days confinement and forfeiture of $300.00 pay per month for one month is approved and will be executed. Article 71c, UCMJ, having been complied with, all rights, privileges and property of which the accused has been deprived by virtue of the sentence set aside, will be restored. However, retention of this Marine on active duty is not in the best interest of the Marine Corps. Therefore, in accordance with MCO P1900.16, I am initiating action to administratively separate the accused for the convenience of the government.

931018:  Applicant discharged with a General (Under Honorable Conditions) by reason of Convenience f the Government, Review Action, Punitive discharge set aside, suspended, remitted or disapproved (without administrative discharge board).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 931018 with a General (Under Honorable Conditions) by reason of Convenience of the Government, Review Action, Punitive discharge set aside, suspended, remitted or disapproved (without administrative discharge board) (A). The Board presumed regularity in the conduct of governmental affairs (B). 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 (C and D).

Issue 1. The Veterans Administration determines eligibility for post-service benefits, not the NDRB. There is no requirement or law that grants recharacterization solely on the issue of obtaining veterans’ benefits and this issue does not serve to provide a foundation upon which the Board can grant relief. While he may feel that his immaturity and youth were factors that contributed to his actions, the record clearly reflects his willful disregard for the requirements of military discipline and demonstrated that he was unfit for further service. The record is devoid of evidence that the applicant was not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.

The discharge was proper and equitable. Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question. No such error or injustice occurred during the applicant’s enlistment. Additionally, there is no law, or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time, or good conduct in civilian life, subsequent to leaving the service. However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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. 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. Evidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs, are examples of verifiable documents that should have been provided to receive consideration for relief, based on post-service conduct. The applicant did not provide sufficient documentation to warrant an upgrade to his discharge. He is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge. The applicant can provide additional documentation to support any claims of post-service accomplishments at that time. Legal representation at a personal appearance hearing is highly recommended but not required. Relief denied.




Pertinent Regulation/Law (at time of discharge)

 A. Marine Corps Separation and Retirement Manual, ( MCO P1900.16D, effective 890627 until 950817), paragraph 6203, CONVENIENCE OF THE GOVERNMENT.
B. 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.

C. 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.

D. 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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