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USMC | DRB | 2001_Marine | MD01-00330
Original file (MD01-00330.rtf) Auto-classification: Denied


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


ex-PVT, USMC
Docket No. MD01-00330

Applicant’s Request
The application for discharge review, received 010123, requested that the characterization of service on the discharge be changed to entry level separation or uncharacterized. The applicant requested a documentary record discharge review. The applicant listed Veteran of Foreign Wars as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010822. 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. I was only U.A to reason uncontrollable
 Reason: (1) Electricity blink out in barracks therefore resetting alarm clock.
         (2) While on '96 Liberty child was born and there was a lot of confusion about authorization of childbirth leave.
          (3) While on '96 Liberty experienced car trouble and received extended Liberty until car was fixed.
          (4) While on '96 Liberty became very ill was medically advised to stay home until further notice.
2. (VFW Issue) Request applicant's entire record of service is reviewed for fairness and equity of his discharge.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of Travel and Transportation of Dependents Message (2pgs)
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              None
          Inactive: USMCR(J)                960619 - 970604  COG
Period of Service Under Review :
Date of Enlistment: 970605               Date of Discharge: 990929

 Length of Service (years, months, days):
         Active: 02 03 25
          Inactive: None
Age at Entry: 19                          Years Contracted: 4

Education Level: 12                        AFQT: 42
Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):
Proficiency: 3.7 (8)              Conduct: 3.3(8)

 Military Decorations: None
Unit/Campaign/Service Awards: LOA

Days of Unauthorized Absence: 5

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

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

 Chronological Listing of Significant Service Events :

980708:  Counseled for deficiencies in performance and conduct. [My repeated and habitual inability to be at my appointed place of duty and my financial irresponsibility. I understand that I have been found to be a liberty risk by my chain of command and will not be authorized special liberty until further notice]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued
980804:  NJP for violation of UCMJ, Article 86: Did on or about 980727 failed to be at appointed place of duty, to wit: rifle range muster.
         Award: Correctional Custody for 30 days, forfeiture of $519.00 per month for 2 months (suspended for 6 months), reduction to E-2 (suspended for 6 months). No indication of appeal in the record.

 981228:  NJP imposed and suspended on 980804 for a period of 6 months is hereby vacated and the punishment is ordered executed.

981228:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 86: Did on or about 981130, without authority, absent himself from appointed place of duty, to wit: HMH-461, MAG-26 MCAS New River and did remain so absent until on or about 981202 [2days/S]. Charge II: violation of the UCMJ, Article 92: Failed to obey a lawful order issued by LTCol H____ to fill out a out of bounds chit on or about 981125, failed to obey that order by going out of bounds without authorization.
         Finding: to Charge I and II and the specification thereunder, guilty.
         Sentence: Confinement for 25 days, forfeiture of $463.00 pay per month for 1 month, reduced to E-1.
         CA action 981229: Sentence approved and ordered executed.

990505:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 86: Did without authority, absent himself from appointed place of duty from 0730, 990408 to 0430, 990411 [2days/S], when he surrendered to the Squadron Duty Officer, Marine Heavy Helicopter Squadron 461. Charge II: violation of the UCMJ, Article 92: Having received a lawful order from Staff Noncommissioned Officer to go to the nearest Western Union Office and call him at the squadron duty hut so money could be wired, and order which was his duty to obey, did on or about 990408 in Atlanta Georgia willfully disobey the same.
         Finding: to Charge I and the specification thereunder, guilty. To Charge II and the specification thereunder, not guilty.
         Sentence: Confinement for 15 days.
         CA action 990905: Sentence approved and ordered executed.
990527:  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 the applicant refused every attempt by his command to correct his behavior and perform in the manner required of all Marines. His actions and total disregard of orders are not in keeping with Marine Corps standards of good order and discipline.

990803:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.
990803:          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.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 990929 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).
Issue 1. The applicant states he was UA for reasons beyond his control. It is unclear which of the applicant’s reasons listed for being absent applied to which of his three unauthorized absences recorded in his service record. Nonetheless, the Board finds no evidence of inequity in the conduct of the nonjudicial punishment and two Summary Court Martial convictions in which the applicant was found guilty. The applicant stated he understood the elements of the offenses with which he was charged. If the applicant felt he would not receive a fair hearing during the conduct of his first nonjudicial punishment, he had the right to request a trial by court martial. He admitted he was guilty of violating the Articles of the UCMJ under which he was charged and also found guilty during two subsequent Summary Court Martial convictions. The applicant’s misconduct, warranting separation for misconduct due to a pattern of misconduct is clearly documented in the service record. No other characterization or Narrative Reason for Separation could more clearly describe why the applicant was discharged. The applicant’s dissatisfaction with the nature of his discharge does not provide a legitimate basis to alter history. Relief denied.
Issue 2. The NDRB considered the applicant’s entire record of service. It does not warrant a change in his characterization of service. 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. The applicant’s service was marred by award of nonjudicial punishment and for offenses triable for court martial on two occasions. 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 a change in his characterization of service. It must be noted that most Marines serve honorably and well and therefore earn honorable discharges. In fairness to those Marines, commanders and separation authorities are tasked to ensure that undeserving Marines receive no higher characterization than is due. While the NDRB respects the fact that the applicant tried, his service is equitably characterized as being performed under other than honorable conditions. Relief is not warranted.
The NDRB is also 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. In determining whether a case merits a change based on post-service conduct, the NDRB considers the length of time since discharge, the applicant's record of community service, employment, conduct, educational achievements, and family relationships. 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. The applicant's efforts need to be more encompassing than those provided. The applicant should have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, and certification of non-involvement with civil authorities in order for consideration for relief based on post-service conduct. At this time the applicant has not provided sufficient documentation of good character and conduct. Therefore no relief will be granted. 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. Representation at a personal appearance hearing is highly recommended but not required.


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, absent from appointed place of duty.
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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