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USMC | DRB | 2001_Marine | MD01-00967
Original file (MD01-00967.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD01-00967

Applicant’s Request
The application for discharge review, received 010718, 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 designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020215. 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
1. I believe my discharge should be upgraded because the treatment by both Camp Pendleton Medical and H and S Battalion personnel created an atmosphere of distrust between myself and the marine Corps regarding my present (at that time) and future physical well being. That the indifference created a belief that my best chance of having my disease treated successfully was through civilian doctors and medical facilities. (Ref. Documents 1 and 2).

2. That my personal and social conduct since my discharge has been consistent with that expected of a law abiding citizen of the United States (Ref 2)

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Applicant's letter to the Board dtd Jul 9 2001
Character Reference letter from R_ H. G_, CPO, USN (Ret) dtd Jul 9, 2001
 Character Reference letter from T_ M_, Pastor, Gateway Community Church, dtd Aug 15, 2001
Neurology, EMG & EEG, J_ J. W_, MD, ltr of July 25, 2001
 Copy of DD Form 214 (2 copies)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                990825 - 000623  COG

 Period of Service Under Review :
Date of Enlistment: 990825               Date of Discharge: 000623

 Length of Service (years, months, days):

         Active: 00 09 29
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

Education Level: 12 (dropped out prior to finishing 12 th Grade in Jun 99)

 AFQT: 37

 Highest Rank: Pvt

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: NMF*                          Conduct: NMF

 Military Decorations: None

 Unit/Campaign/Service Awards: Rifle Sharpshooter Badge

 Days of Unauthorized Absence: 11

*No Marks Found in service record book
 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 :

000201:  Medical Board Evaluation: Diagnosis is Peripheral Neuropathy Mononeuritis Multiplex. Limitations are not PFT, PT at own pace, non-deployable. Limited duty for 8 months.
000206:  Unauthorized absence since 1801.

000218:  Surrendered at 2015 (11 days).

 000224:  NJP for violation of UCMJ, Article 86: UA from 1801, 000206 to 2015, 000218.
 Awarded forfeiture of $234.00 per month for 1 month, restriction and
extra duties for 14 days. Not appealed.

 000224:  Counseled for deficiencies in performance and conduct [unauthorized absence from 0801/000206 to 2015/000218]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
000518:  NJP for violation of UCMJ, Article 86: UA from 0401, 000408 to 0800, 000408.
         Award: Forfeiture of $502 per month for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.
000518:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by failure to obey rules and regulations and over the past three months have resulted in two nonjudicial punishments and one 6105 counseling.
000518:  Applicant advised of his rights and elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

000518:  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 failure to obey rules and regulations. Commanding officer’s comments (verbatim): Private (Applicant)'s intolerable actions over the past three months have resulted in two nonjudicial punishments and one 6105 counseling.

Through Private (Applicant)'s actions, Private (Applicant) has demonstrated that he no longer possess the potential for continued honorable service in the Marine Corps.
000620:  SJA review determined the case sufficient in law and fact.

000622:  GCMCA [CG, MCB, Camp Pendleton] directed the applicant's discharge under other than honorable conditions by reason of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 000623 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 Board found that the applicant’s dissatisfaction with his medical care does not mitigate his misconduct. A characterization of service of 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 two occasions 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. Relief denied.

Issue 2. 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 P1900.16E), effective 18 Aug 95 until Present.

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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