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USMC | DRB | 2001_Marine | MD01-00855
Original file (MD01-00855.rtf) Auto-classification: Denied


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

ex-PFC, USMC
Docket No. MD01-00855

Applicant’s Request
The application for discharge review, received 010712, 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 020118. 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 (administrative discharge board required but waived), authority: MARCORSEPMAN Par. 6210.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1. DEAR BOARD MEMBERS,

I would like an upgrade in my discharge based on the fact that I was young and dumb back in those days and have since matured and become more responsible. I have successfully completed five years of electrical apprenticeship and work for IBEW local II union in Los Angeles, CA. I've been a journeyman electrician for over a year and have a little over 7 years experience in the trade. I've worked hard to make up for my mistakes in my youth and have recently come to realize my error in the service. I have two wonderful kids that I love tremendously and would love nothing more than to provide a home for them. Unfortunately due to the foolishness of my past, I am unable to quality for a VA Loan on a house. Hopefully with an upgrade of my discharge I'll be able to buy a house so that my kids and I will always have a stable place to live. Sincerely yours, S___ H___.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of Certificate of Completion (Electrical Apprenticeship)
Photograph of Kids
IBEW Receipt

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              None
         Inactive: USMCR(J)                881207 - 890102  COG

 Period of Service Under Review :
Date of Enlistment: 890103               Date of Discharge: 900904

 Length of Service (years, months, days):

         Active: 01 08 02
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

Education Level: 12                        AFQT: 68

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.6 (5)                       Conduct: 3.6 (5)

 Military Decorations: None

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

 Days of Unauthorized Absence: None

 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 :

890712:  Counseled concerning dropped from MCSFBn, Pac, Scol IAW MCO 1300.20H and MCO 5510.7F. SNM found not qualified for MCFS Duty during initial screening. PFC H___ was advised that within 5 days after being informed of this entry a written rebuttal to the entry could be submitted and that such a rebuttal will be filed on the document side of the service record. PFC H___ choose not to make a statement.

891011:  NJP for violation of UCMJ, Article 108: In that SNM, did on or about 0515, 891004, without proper authority, through neglect lose a M16A2 service rifle of a value of about $500.00, military property of the United States.
         Award: Forfeiture of $100.00 per month for 1 month, restriction and extra duty for 14 days. Not appealed.

900502:  NJP for violation of UCMJ, Article 112: In that SNM was onboard USS PELELIU on or about 2230, 900412, found drunk while on duty as lower vehicle sentry watch.
         Award: Forfeiture of $169.00 per month for 1 month, restriction and extra duty for 14 days. Not appealed.

900613:  Counseled for deficiencies in performance and conduct. Since joining this unit you have been convicted of two serious offenses under the UCMJ. Your performance is below that expected of an average Marine. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

900621:  NJP for violation of UCMJ, Article 112a: SNM at Cobra Gold, Thailand, on 900531 admitted to wrongfully smoking a controlled substance, to wit: A Thai-stick, violation of UCMJ, Article 92: Dereliction in the performance of duties by negligently failed to keep his M16 Rifle attended.
         Award: Forfeiture of $405.00 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2. Not appealed.

900623:  First Sergeant J. E. C__, Company First Sergeant recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

900623:  First Lieutenant M. J. F___, Heavy Weapon Platoon Commander recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

900630:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.
900630:  Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

900630:  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 three non judicial punishments.

900803:  SJA review determined the case sufficient in law and fact.

900816:  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 900904 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).

 The applicant’s issue states his youth and immaturity contributed to his other than honorable discharge from the service, that he is gainfully employed, and the discharge impedes his VA home loan eligibility.

 The Board found that the applicant’s age, education level, and test scores qualified him for enlistment. While he may feel his immaturity was a factor that contributed to his action, the record clearly reflects his willful disregard for the requirements of military discipline and demonstrated that he was unfit for further service. The record is devoid of evidence that the applicant was not responsible for his conduct or that he should not be held accountable for his actions. Relief is not warranted.

The NDRB is authorized to consider post-service factors in the re characterization of a discharge. 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 the civilian life subsequent to leaving the service. Normally, to permit relief, an error or injustice must have been found to have existed during the period of enlistment in question. Outstanding post-service conduct, 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, may be considered by the NDRB. The applicant failed to provide documentary evidence to demonstrate his sobriety, positive community service, and clean police record. Relief is not warranted.

The applicant requested the discharge be changed so he may secure VA benefits. The NDRB has the authority to change a discharge if there is an impropriety or inequity. The VA’s denial of benefits does not constitute an impropriety or inequity relating to the discharge. Relief is denied.

The NDRB noted the applicant’s offenses included loosing a weapon, using illegal drugs and drunk on duty. The applicant was provided the appropriate counseling and warning concerning his deficiencies. The other than honorable discharge accurately describes his service to our country. To change the discharge would be inappropriate.

The applicant is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge. Representation at personal appearance hearing is recommended .


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 112a, 112, and 108.
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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