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USMC | DRB | 2001_Marine | MD01-00533
Original file (MD01-00533.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD01-00533

Applicant’s Request
The application for discharge review, received 010313, 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 listed the Disabled American Veteran as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010906. 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 – Minor disciplinary infractions (administrative discharge board required but waived), authority: MARCORSEPMAN Par. 6210.2.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1. After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of the evidence assembled for review, we continue to note the contentions as set forth on the application by the appeallant of an upgrade of his current Under Other Than Honorable Conditions discharge to that of General Under Honorable Conditions.

The record reflects the FSM served in the United States Navy from July 26, 1990 to July 23, 1993, at which time he received the discharge as noted above, due to misconduct due to minor disciplinary infractions.

The FSM requests equitable relief in the manner as noted above, requesting a review of the evidence on file to include that submitted denoting his outstanding post service conduct, as noted by statements from civilian authorities, family and friends.

As the representative this service requests consideration be given to equitable relief in the form of a General Under Honorable Conditions for this FSM, with consideration to SECNAVINST 5420.174C 9.3 Enclosure (1).

We ask for the Board's careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision. These issues do not supersede any issues previously submitted by the applicant.
Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of police record check dated December 11, 2000
Copy of social security card
Copy of California driver's license
Character reference
Character reference
Character reference
Character reference
Copy of resume
Copy of FICA earnings and employer name and address

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                900116 - 900725  COG

 Period of Service Under Review :
Date of Enlistment: 900726               Date of Discharge: 930727

 Length of Service (years, months, days):

         Active: 03 00 02
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

 Education Level: 12                        AFQT: 47

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.3 (8)                       Conduct: 3.7 (8)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SASM with 2 Bronze Stars, SSDR with 1 Star

 Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – Minor disciplinary infractions (administrative discharge board required but waived), authority: MARCORSEPMAN Par. 6210.2.

 Chronological Listing of Significant Service Events :

920217:  NJP for violation of UCMJ, Article 91 (2 specs):
 Specification 1: Disobeyed an order from an NCO by not cleaning up at 1215 on 920208 in the platoon berthing area.
Specification 2: Disrespectful to an NCO on 1215, 920205 by saying "You people are really starting to piss me off" in the platoon berthing area.
Violation of UCMJ, Article 117:
Specification: Wrongfully using provoking speech to an NCO and others in the platoon berthing area by saying "You can all suck my dick" and "You white mother fuckers".
Awarded forfeiture of $440.00 per month for 2 months, restriction and extra duties for 45 days, reduction to PFC. Not appealed.
920229:  Counseled for deficiencies in performance and conduct. [General poor attitude toward fellow Marines. Repeated use of racially insulting language toward fellow Marines. Disrespect toward NCOs and others on your chain of command]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

 920430:  NJP for violation of UCMJ, Article 134
 Specification: Broke Battalion restriction at 1600, 920401 by leaving the confines of the Company area.
Awarded forfeiture of $363.00 per month for 2 months, restriction and extra duties for 45 days, reduction to Pvt. Appeal submitted on 920527. No further information found in service record.
920922:  NJP for violation of UCMJ, Article 121 (0 specs):
 Specification: Wrongfully appropriated gasoline, of a value of $3.00, the property of MCX on 920827.
Violation of the UCMJ, Article 91:
Specification: Willfully disobey a lawful order on 920910, to wit: field day his quarters area of responsibility.
Violation of the UCMJ, Article 92:
Specification: Fail to obey lawful order on 920910, to wit: by leaving the company area in his POV without signing in or out in ACB liberty logbook.
Awarded forfeiture of $100.00 per month for 1 month, restriction and extra duties for 14 days. Not appealed.
921015:  Counseled for deficiencies in performance and conduct. [Lack of military bearing. Lack of maturity. Lack of professional integrity]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

 921105:  Applicant informed eligible but not recommended for promotion to PFC for the December 1992 promotion period because of recent NJP on 921008.
930308:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 92:
         Specification: Fail to obey lawful order.
         Charge II: violation of the UCMJ, Article 86:
         Specification 1: Unauthorized absence 0600, 930220 to 0500, 930222 (1 day).
         Specification 2: Unauthorized absence 0500-2135, 930223.
         Charge III: violation of the UCMJ, Article 91:
         Specification: Disrespect to NCO.
         Finding: to Charge I. II and III and the specifications thereunder, guilty.
         Sentence: forfeiture of $543.00, confinement for 29 days.
         CA action 930323: Sentence approved and ordered executed.

930308:  Applicant to confinement.

930401:  Applicant from confinement.

940607:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions.
930604:          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.

930607:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions. The factual basis for this recommendation was applicant's summary court martial of 8 March 1993 and three nonjudicial punishments on 17 February 1992, 30 April 1992 and 22 September 1992.

930630:  SJA review determined the case sufficient in law and fact.

930712:  GCMCA [Commanding General, 2d Marine Division, FMF] directed the applicant's discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 930727 under other than honorable conditions for misconduct due to minor disciplinary infractions (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 requested a discharge review based upon its equity and his post service conduct. 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 nonjudicial punishment (NJP) for offenses triable by court-martial on three occasions, conviction at a trial by Summary Court-Martial 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 to honorable would be inappropriate. 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.

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. 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 relief, based on post-service conduct. The applicant did not provide sufficient documentation to warrant an upgrade to his discharge. 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 P1900.16D), 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 91, disrespect toward superior noncommissioned officer; Article 92, failure to obey lawful orders; and Article 121, larceny.
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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