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USMC | DRB | 2001_Marine | MD01-00637
Original file (MD01-00637.rtf) Auto-classification: Denied


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

ex-PVT, USMC
Docket No. MD01-00637

Applicant’s Request
The application for discharge review, received 010406, 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 010928. 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. 6210.2.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. I appeal to the board for a discharge upgrade. I admit that I made errors in my past and that I didn't show good judgement in many things. Since exiting the Marine Corps, however, I have changed my behavior and attitude considerably. I am now married and am a stepfather to two. I went into the construction industry and went from a laborer to a foreman in a three year period. I now do security work for Burns International and have applied for various law enforcement positions, such as deputy and highway patrol, while not completely serving all opportunities my discharge greatly hinders law enforcement. I am trying to build a future and contribute to society in an honest and honorable manner. Thank you for any consideration you give my case.

 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              None
         Inactive: USMCR(J)                950518 - 950723  COG

 Period of Service Under Review :
Date of Enlistment: 950724               Date of Discharge: 970214

 Length of Service (years, months, days):

         Active: 01 06 21
         Inactive: None

 Age at Entry: 17                          Years Contracted: 4

Education Level: 12                        AFQT: 58

 Highest Rank: PFC

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.7 (4)              Conduct: 3.7 (4)

 Military Decorations: None

 Unit/Campaign/Service Awards: Rifle Marksman Badge, NDSM, GCM

Days of Unauthorized Absence: 2

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MARCORSEPMAN Par. 6210.2.

 Chronological Listing of Significant Service Events :

960801:  NJP for violation of UCMJ, Article 86: UA from 0931, 960715 to 1400, 960717.
         Award: Forfeiture of $228.00 per month for 1 month, restriction and extra duty for 14 days. Not appealed.

960817:  NJP for violation of UCMJ, Article 91: Disobey Sgt M_____ to report to the C Co. office; violation of UCMJ, Article 117: Wrongfully used provoking speech gestures toward Sgt M____ at 0915 on 960809.
         Award: Forfeiture of $228.00 per month for 1 month, restriction and extra duty for 14 days. Not appealed.

960827:  Counseled for deficiencies in performance and conduct. [Lack of judgment, physical and moral courage and dependability]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

960925:  Counseled for deficiencies in performance and conduct. [Lack of judgment, disrespect for authority, and conduct unbecoming a Marine]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

961105:  NJP for violation of UCMJ, Article 134: Broke restriction at 1416 on 960825, violation of UCMJ Article 134: Broke restriction at 0007 on 960824, violation of UCMJ Article 90: Willfully disobeyed Lt S______'s command not to operate a motor vehicle.
         Award: Forfeiture of $400.00 per month for 1 month, restriction and extra duty for 45 days, reduction to E-1. Not appealed.

961206:  NJP for violation of UCMJ, Article 86: Failed to report to the Battalion OOD while on restriction on or about 961107, violation of UCMJ Article 86: Failed to report to the Battalion OOD while on restriction on or about 961111; violation of UCMJ Article 92: Violate ALMAR 194 by having a "nipple ring" on or about 961120.
         Award: Forfeiture of $204.00 per month for 1 month, restriction and extra duty for 14 days. No indication of appeal in the record.

970106:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions.
970106:          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.

970106:  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 minor disciplinary infractions, specifically, numerous violations of the UCMJ which resulted in him receiving NJP on four (4) separate occasions and two (2) counseling.

970204:  SJA review determined the case sufficient in law and fact.

970207:  GCMCA [Commanding General] 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 970214 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 states, he has not been able to maximize his potential as a civilian, due to the nature of his discharge. The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities as requested in the issue. The Board’s charter limits its review to a determination on the propriety and equity of the discharge. 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 P1900.16E), effective 18 Aug 95until 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, failure to report, Article 134, breaking restriction and Articles 90 and 91, disobeying orders.
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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