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USMC | DRB | 2001_Marine | MD01-00408
Original file (MD01-00408.rtf) Auto-classification: Denied


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

ex-PVT, USMC
Docket No. MD01-00408

Applicant’s Request
The application for discharge review, received 010221, requested that the characterization of service on the discharge be changed to Honorable and the reason for the discharge be changed “ to better myself & future”. The applicant requested a personal appearance hearing discharge review before the Board in the Washington National Capital Region. The applicant listed Veterans of Foreign Wars as his representative on the DD Form 293.

Decision

A personal appearance hearing discharge review was conducted in Washington, D.C. on 011001. 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 and reason for discharge shall not change. The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct-Pattern of misconduct (administrative discharge board required but waived), authority: MARCORSEPMAN Par. 6210.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1. Cemency based on post-service SECNAVINST 5420.174c, para 1.12.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Letter from Applicant (2pgs)
Copy of First Page of Decisional Document


PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              None
         Inactive: USMCR(J)                870124 - 870920  COG

 Period of Service Under Review :
Date of Enlistment: 870921               Date of Discharge: 901102

 Length of Service (years, months, days):

         Active: 03 01 13
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 53

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.2 (10)                      Conduct: 3.8 (10)

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR, Rifle Marksman Badge

 Days of Unauthorized Absence: 18

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT – Pattern of misconduct (administrative discharge board required but waived), authority: MARCORSEPMAN Par. 6210.3.

 Chronological Listing of Significant Service Events :

890110:  NJP for violation of UCMJ, Article 92: On or about 0040, 881229, had the gate unsecured when it is required to be closed and locked unless he is letting personnel in or out, and Article 123: On or about 0040, 881229, did falsify an official document, to wit: Making log book entries until the end of his post at 0300 when it was on 0040.
         Award: Forfeiture of $203.00 for one month, and restriction and extra duty for 14 days. Not appealed.

890129:  Counseled for deficiencies in performance and conduct which has resulted in your first NJP of this tour. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued

890313:  Counseled for deficiencies in performance and conduct for the recent negligent and/or willful issuance of worthless personnel checks. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued

890605:  CO, Ammunition Company, 2dSupBn, 2Dfssg, FMFLant, Camp Lejeune, NC, counseled for deficiencies in performance and conduct for being late for platoon formation. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued

890731:  NJP for violation of UCMJ, Article 107: On or about 890523 knowingly and wrongfully make a false official statement to a NIS agent, to wit: Some checks had been stolen forged and cashed by an unknown person.
 Awarded forfeiture of $391.00 for 1 month (suspended for 6 months), restriction for 14 days, reduction to E-2. Not appealed.
890824:  Counseled for deficiencies in performance and conduct as evidenced by frequent violations of the UCMJ. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued

891016:  Applicant involved in a motor vehicle accident. [Extracted from Medical Board Report of 900215. Line of Duty Investigation NFIR].

900215:  Medical Board Report, Naval Hospital Portsmouth, VA: Primary Diagnosis: Status post laryngeal fracture, DNEPTE, #8075, and Secondary Diagnosis: Subglottic and supraglottic laryngeal stenosis, DNEPTE, #47874. Placed on Limited Duty for 12 months, ashore in CONUS, in the tidewater area, with duties that should preclude being around water due to the patient's indwelling tracheotomy.

900410:  Applicant acknowledged receipt of the Medical Board recommendation.

900411:  Medical Board, Convening Authority (CO, Ammunition Company, 2dSupBn, 2Dfssg FMFLant, Camp Lejeune, NC) approved the recommendation of the Medical Board.

900514:  NJP for violation of UCMJ, Article 86: Unauthorized absence (UA) from 0631, 900315 until 1515, 900402(18days/S).
         Award: Forfeiture of $405.00 per month for 2 months (suspended for 60 days), reduction to E-2. Not appealed.
900607:  Recommendation of the medical board report is approved. Applicant to be retained in a limited duty status. Period not to exceed 12 months. Applicant to be reevaluated during January 1991.

900727:  Special Court-Martial.
         Charge I: violation of the UCMJ, Article 92: Violate a lawful general order by wrongfully using Government provided long distance telephone services to make unauthorized personal calls between 900105 and 900219, and totalling approximately $1,645.93.
         Findings: to Charge I and specification 1 thereunder, guilty.
         Sentence: Confinement for 2 months, forfeiture of $100.00 per month for 6 months, reduction to E-1.
         CA 900924: CO approved sentence, and ordered it executed.
        
900919:  NJP for violation of UCMJ, Article 92: On or about 0418, 900902 operate a POV while under the influence of alcohol (BAC.05).
         Award: Forfeiture of $207.00 for 1 month (suspended for 6 months), restriction and extra duty for 14 days (suspended for 6 months). Not appealed.

901003:  Applicant notified of intended recommendation for discharge under Other Than Honorable conditions by reason of misconduct due to a Pattern of misconduct.
901003:  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.

901003:  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 a SPCM on 900727 and NJP's 890110, 890731, 900514, and 900919, and the applicant's adverse Page 11 entries of 890127, 890313, 890605, and 890824.

901018:  SJA review determined the case sufficient in law and fact.

901019:  GCMCA [Commanding General, 2dFSSG, FMFLant] directed the applicant's discharge under Other Than Honorable conditions by reason of misconduct due to a Pattern of misconduct.

 990323:  NDRB documentary record review Docket Number MD98-00809 conducted. Determination: discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 901102 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 wants his discharge upgraded based on post-service, in accordance with SECNAVINST 5420.174c, para. 1.12. 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 clemency, based on post-service conduct. The applicant did not provide any of these documents. The unfortunate circumstances of the motor vehicle accident he was involved in while serving in the military, was not sufficient justification to upgrade his discharge. The applicant is encouraged to seek assistance through the state of Georgia public assistance or social services for medical treatment and employment assistance.

The applicant has exhausted all available opportunties to have his case reviewed by the NDRB. Any additional attempt to have his dicharge characterization upgraded will have to be petitioned through the Board of Correction of Naval Records (BCNR). Relief denied.

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 an order, or regulation), Article 123 (forgery), or Article 107 (false official statement).
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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