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USMC | DRB | 2001_Marine | MD01-00455
Original file (MD01-00455.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD01-00455

Applicant’s Request
The application for discharge review, received 010227, 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 011218. 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 (verbatim)

1. My conduct on being a marine was above average and my marks were good. I was told by Major D_ after I got back from the brig. I received awards. I was meritoriously promoted for my outstanding job on being a marine. I have been a good citizen since my discharge. Personnel problems impaired my ability to serve. I feel my command certain individuals abused there authority. As a matter of fact when I got back from the brig we had a new commanding officer. Because are BO. Was in trouble for abusing his authority and was sent for court martial his self. My new C.O. told me (Major D_) that if he was here at the time he would never of let this happen to me. Because he thought I was a outstanding marine. The reason I went to the brig is because of my first Sgt. told me that I couldn't go home and see my dying grandmother. And said in these exact words FUCK YOUR family you are here in the Marines for 4 yrs. So I told him I had to see her. Because I was with my cousin when he got hit by a car and died right in front of me. And that was hard for me to take. So I went awol. Yes It might not of been the right thing to do. But I was young at the time and mentally stressed. But I did the crime and I did the time. And hope you guys can understand and upgrade my discharge for me. Thanks so much.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of meritorious mast dated December 9, 1994
Pennsylvania State Police criminal record check dated February 12, 2001

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                930709 - 931025  COG

 Period of Service Under Review :
Date of Enlistment: 931026               Date of Discharge: 951026

 Length of Service (years, months, days):

         Active: 02 00 01
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

 Education Level: 12                        AFQT: 45

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.7 (6)                       Conduct: 3.6 (6)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, MM

 Days of Unauthorized Absence: 27

 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 :

950223:  NJP for violation of UCMJ, Article 86:
 Specification: Absent from appointed place of duty on 0900, 25Jan95.
Awarded forfeiture of $223.00 per month for 1 month, restriction and extra duties for 14 days, reduction to PFC. Not appealed.
950301:  Counseled for deficiencies in performance and conduct. [Professional incompetence. Specifically, your are counseled on poor judgment, reliability, and overall moral fitness. You have demonstrated these characteristics by exaggerating your deficient psychological condition on tests given by the Base psychologist. This has, in part, resulted in the psychologist recommending no weapons handling and an administrative separation. Additionally you have demonstrated to both myself and the 1stSgt your poor attitude about the Marine Corps by stating that you desired to "get out of the Marines because it was not what you expected." Your actions and attitude reflect poor moral fitness and is not in keeping with the degree expected of a Marine of your grade]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
950420:  Counseled for deficiencies in performance and conduct. [Frequent involvement with military/civilian authorities and minor incidents prejudicial to good order and discipline]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued
950531:  Applicant to confinement.

950607:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 86 (2 specifications):
         Specification 1: Unauthorized absence from 0545, 9Apr95 to 1630, 19Apr95 (10 days/surrendered).
         Specification 2: Unauthorized absence from 0330, 21Apr95 to 2325, 8May95 (17 days/surrendered).
         Finding: to Charge I and the specifications thereunder, guilty.
         Sentence: Confinement for 1 month, forfeiture of $569.00, reduced to Pvt.
         CA action 950607: Sentence approved and ordered executed.

950624:  Applicant from confinement, to duty.

951026:  DD Form 214: Discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct, authority: MARCORSEPMAN, para 6210.3.

The discharge package is missing from service record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 951026 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 Board found no evidence that the applicant’s command abused its authority in its treatment of the applicant. The Board disagrees with the applicant’s assertion that his overall service record warrants a discharge under honorable conditions. When a Marine’s service has been honest and faithful, it is appropriate to characterize that service as honorable. 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. T he applicant’s service was marred by award of a summary court-martial on one occasion, a nonjudicial punishment (NJP) on one occasion and adverse counseling entries on other 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 an honorable characterization of service. An upgrade would be inappropriate.

The applicant’s discharge characterization accurately reflects his service to his country. 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. 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. 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, unauthorized absence.
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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