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USMC | DRB | 2001_Marine | MD01-00473
Original file (MD01-00473.rtf) Auto-classification: Denied


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

ex-PFC, USMC
Docket No. MD01-00473

Applicant’s Request
The application for discharge review, received 010301, 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 list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 011108. 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-Pattern of misconduct (admin discharge board required but waived), authority: MARCORSEPMAN Par. 6210.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. I re-enlisted twice, I had more that 7 years of good service. What happened to me all occurred within a 6 month period. I had 2 periods of unauthorized absences. I had staff NCO's permission to take leave, but wasn't approved by the platoon commander, so I was charged with 28 days of U.A.

2. Since I've been out of the service, I've never been arrested & I've been steadily employed.

Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
None

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              790725 - 820802  HON
                  USMC             820803 - 850429  HON
         Inactive: USMCR(J)                790623 - 790724  COG

 Period of Service Under Review :
Date of Enlistment: 850430               Date of Discharge: 880518

 Length of Service (years, months, days):

         Active: 02 11 19
         Inactive: None

 Age at Entry: 24                          Years Contracted: 6

Education Level: 12                        AFQT: 71

 Highest Rank: SGT

 Final Enlisted Performance Evaluation Averages : All Enlisted performance reports were available to the Board for review.

 Military Decorations: None

 Unit/Campaign/Service Awards: Rifle Sharpshooter Badge, GCMw1*, SSDR, Pistol Marksman Badge, LOA

Days of Unauthorized Absence: 28

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

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

 Chronological Listing of Significant Service Events :

850430:  Reenlisted at MB USNB NORVA 23511 for 6 years.
861216:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 86.
         Specification 1: UA (AWOL) from unit from 861021 to 861114; Specification 2: Absence from appointed place of duty on or about 0530, 861124 to wit: Rifle Range.
         Finding: to Charge I and specifications 1 and 2 thereunder, guilty.
         Sentence: Forfeiture of $400.00 pay per month for 1 month, reduced to E-4, restriction for 30 days.
         CA action 861224: Sentence approved and executed but execution of the sentence is suspended for 6 months, at which time, unless sooner vacated, suspension will be remitted without further action.

870617:  The sentence imposed and suspended on 861224 is vacated except for that portion pertaining to the $400.00 pay per month for 1 month.

870617:  NJP for violation of UCMJ, Article 86: (2 Specifications), Specification 1: Did on or about 0701, 870605, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: Battalion Commanders Summer Service Alpha inspection at 1stBn, 1stMar, 1stMarDiv, CamPen Parade Deck; Specification 2: Did on or about 0631, 870608, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: Battalion Commanders Summer Service Alpha inspection at 1stBn, 1stMar, 1stMarDiv, CamPen Parade Deck P.T. Formation, located at 1stBn, 1stMar, 1stMarDiv, (REIN), FMF, CamPen, and did remain so absent until on or about 1210, 870608.
         Award: Restriction and extra duty for 45 days, reduction to E-3. Appealed on 870620.

870617:  Counseled for deficiencies in performance and conduct. [Lack of self discipline, lack of responsibility with finances and with job performance] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued
871109:  Dropped from roll declared a deserter due to missing movement.
871208:  Applicant surrendered to military authorities on 871207 (1300) at JRC, HqCo, HqBn, 1stMarDiv, CamPen, CA. Returned to military control 871207 (1300). Retained.

880212:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 86.
         Specification 1: UA from appointed place of duty on or about 0730, 880108, to wit: 53 Area Dining Facility; Specification 2: UA from 871109 to 871207 (28days/S).
         Finding: to Charge I and specifications 1and 2 thereunder, guilty.
         Sentence: CHL for 30 days, reduced to E-2.
         CA action 880216: Sentence approved and will be executed but the execution o that part of the sentence extending to confinement is suspended for six months at which time, unless the suspension is sooner vacated, the suspended part of the sentence will be remitted without further action. Confinement deferred 880212 to 880216.
880301:  First Sergeant D.B. M___ strongly recommended that PFC M___ be administratively discharge for misconduct.

880301:  Captain D.J. B___ strongly recommended that PFC M___ be discharge prior to his EAS.

880331:  Applicant notified of intended recommendation for discharge under Other Than Honorable conditions by reason of misconduct due to a Pattern of misconduct.
880401:          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.

880401:  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 your established pattern of involvement of a discreditable nature with military authorities. This misconduct is evidence by one nonjudicial punishment and tow summary courts-martial.

880418:  SJA review determined the case sufficient in law and fact.

880420:  GCMCA [Commanding General] directed the applicant's discharge under Other Than Honorable conditions by reason of misconduct due to a Pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 880518 under Other Than Honorable conditions for misconduct due to a Pattern of misconduct (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 applicant states, he had more than seven years of good service and that what happened to him occurred within a six month period. He also states, he had staff NCO’s permission to take leave, but his leave wasn’t approved by the platoon commander. The record shows the applicant had two summary court martials. One court martial occurred on 861216, for violation of UCMJ Article 86 and the other on 880212, for violation of UCMJ Article 86. He was found guilty at both court martials. Relavant and material facts stated in a court martial specification are presumed by the NDRB to be established facts. Therefore, the Board will not relitigate the applicant’s SCMs. The Board found no impropriety in the discharge process or inequity in the discharge characterization assigned. The applicant did not submit any documentation to be considered for clemency. The discharge was proper and equitable. Relief denied.

Issue 2. The applicant states, since he’s been out of the service he has never been arrested and steadily employed. 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. 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 P1900.16C), Change 4, effective 29 Jul 87 until 26 Jun 89.

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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