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USMC | DRB | 2001_Marine | MD01-00393
Original file (MD01-00393.rtf) Auto-classification: Denied


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

ex-Cpl, USMC
Docket No. MD01-00393

Applicant’s Request
The application for discharge review, received 010208, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a documentary record discharge review. The applicant designated the American Legion as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 011018. 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: GENERAL (UNDER HONORABLE CONDITIONS)/CONDITION NOT A PHYSICAL OR MENTAL DISABILITY, authority: MARCORSEPMAN Par. 6203.2a(9).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. (Equity issue) This former member opines that the positive aspects of her overall service record so significantly outweigh the negative that is is inequitable not to grant her an honorable discharge.

2. (Equity issue) This former member further requests that the Board include provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214
Applicant's letter to the Board dtd 26 Jan 01

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              930201 - 961101  HON
         Inactive: USMCR(J)                930108 - 930131  COG

 Period of Service Under Review :
Date of Enlistment: 961102               Date of Discharge: 990820

 Length of Service (years, months, days):

         Active: 02 09 19
         Inactive: None

 Age at Entry: 26                          Years Contracted: 4

Education Level: 12                        AFQT: 41

 Highest Rank: Cpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.6 (6)              Conduct: 4.4 (6)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, CoA, GCM, CoC(2), LoA(4), MUC , MSC

Days of Unauthorized Absence: None

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

GENERAL (UNDER HONORABLE CONDITIONS)/CONDITION NOT A PHYSICAL OR MENTAL DISABILITY, authority: MARCORSEPMAN Par. 6203.2a(9).

 Chronological Listing of Significant Service Events :

961102:  Reenlisted at SPTBN, RTR, MCRD San Diego, CA for 4 years.


 970528:  Counseled for deficiencies in performance and conduct [failing the PFT on 970528]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

970528:  Counseled for deficiencies in performance and conduct [lack of integrity by uttering a false statement concerning the number of miles completed on the PFT]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

970604:  NJP for violation of UCMJ, Article 107: On or about 28 May 97, utter a false statement to SSgt G_ and CWO3 M_, by stating that she had completed 3 full laps of the 3 mile PFT run course which was a statement she knew to be false; violation of UCMJ, Article 91: On or about 28 May 97, treat with contempt, a Warrant Officer, by uttering a false statement which she knew to be false, by stating that she had completed 3 full laps of the 3 mile PFT run course.
Awarded reduction to pay grade E-3, and forfeiture of $598.00 per month for 1 month (suspended for 6 months). Appeal submitted 970611. Appeal Denied 970627.
980105:  Counseled for deficiencies in performance and conduct [failure to call work section upon completion of a medical appointment and prior to departing on annual leave]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

980903:  Physical Evaluation Board found member "fit for duty".

990702:  Counseled for deficiencies in performance and conduct [inability to fully conform to Marine Corps standards due to a physical condition (not a disability) - specifically: Patellofemoral Pain Syndrome]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

990727:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service as General (Under Honorable Conditions) by reason of having a condition with interferes with the performance of duty.
990727:  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.
990729:  Commanding officer recommended discharge with an honorable by reason of having a physical condition (not a disability) which interferes with the performance of duties. The factual basis for this recommendation was due to failure of scheduled PFT (the three mile run) in May 1997 and was subsequently diagnosed with Right Patellofemoral Pain Syndrome and placed on six months Temporary Limited Duty and no progress during TLD period.

990810:  SJA review determined the case sufficient in law and fact, however, recommended applicant be separated with a general discharge.

990811:  GCMCA [Commander, MCB, Quantico] directed the applicant's discharge with a General (Under Honorable Conditions) for convenience of the government due to physical condition not a disability.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 990820 with a General (Under Honorable Conditions) due to condition not a physical or mental disability (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 Board disagrees with the applicant’s assertion that her 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. Less 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 one occasion and adverse counseling entries on other occasions. Relief denied.

Issue 2. 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. 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 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.

Pertinent Regulation/Law (at time of discharge)

 A. Marine Corps Separation and Retirement Manual, (MCO P1900.16E, effective 18 Aug 95), 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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