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USMC | DRB | 2001_Marine | MD01-00968
Original file (MD01-00968.rtf) Auto-classification: Denied


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


ex-PVT, USMC
Docket No. MD01-00968

Applicant’s Request
The application for discharge review, received 010717, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a personal appearance hearing discharge review before a traveling panel. The applicant did not list any representative on the DD Form 293. In the acknowledgement letter to the applicant, he was informed that the Naval Discharge Review Board (NDRB) does not travel, all hearing are held in the Washington, DC Area. The Naval Discharge Review Board (NDRB) also advised that the board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020417. 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. Dear Sir or Mamma, I am concerned about my future and how the decision that I made in 1995. Firstly I entered the delayed entry program with a guarantee of an MOS" and a $ Bonus which came with it. I was 17 years old they so my mom had to approve this and also a notarization along with this. I took the pre-assessment test and scored well and was told that I would be able to get a guarantee in the field that I wanted. So I asked for "Air Craft Mechanics School". I therefore had enlisted with the belief that I would be guaranteed that "MOS". To my surprise I did not get the "MOS" that was guaranteed to me, instead I received the "MOS" OF 0811 - Artillery ______ you see -my major in high school had been Automotive Mechanics for 3 years - and with 2 of those 3 years in the Advanced Classes. This was a very emotional shock to my family and me. Can you please help me by looking into this? I could not and did not know how to do- I only know that I was told that the "MOS" that I was guaranteed must be full (classes) and that I would have to start all over again. This was very stressful and confusing for me to a point that I became somewhat depressed, destructive and suicide. You see-I had so many hopes and dreams of becoming a mechanic that when that was lost, so was I! Oh yes I had some problems 1 st - I hurt my shoulder and under went surgery that is still giving my problems. 2 nd - My grandmother past away (Died). 3 rd After writing the Commandant of the Marine Corps 2 twice for a change of "MOS" and duty station I was turned down both times. 4 th ly - probably most important I felt very trapped so along with a few other guys-we used government property without consent. I received a sentence of 38-45 days in the Brig- I was asked to leave meaning if I wanted out-but not kicked out, 5 th ly-I was assaulted by a higher ranking NOC. I needed medical treatment and received stitches on the nose due to the assault.'
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)                850618 - 860112  COG
Period of Service Under Review :
Date of Enlistment: 860113               Date of Discharge: 880318

 Length of Service (years, months, days):
         Active: 02 02 05
          Inactive: None
Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 54

 Highest Rank: LCpl
Final Enlisted Performance Evaluation Averages (number of marks):
Proficiency: 3.9 (6)                       Conduct: 3.6 (6)

 Military Decorations: None
Unit/Campaign/Service Awards: Rifle Sharpshooter Badge

 Days of Unauthorized Absence: 5
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 :

870626:  NJP for violation of UCMJ, Article 86: UA/AWOL from on or about 0801, 870608 to on or about 2300, 870609, violation of UCMJ, Article 92: Dereliction of duty, to wit: Bn Comm-guard, 4thBn, 10thMar, 2dMarDiv, FMF, CamLej, in that SNM was not walking his post in a military manner at on or about 2115, thru 870620, violation of UCMJ, Article 86: Absent from appointed place of duty, to wit: Bn Comm-guard, 4thBn, 10thMar, 2dMarDiv, FMF, CamLej, at on or about 0345 thru 0445, 870623.
         Award: Forfeiture of $369.00 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2 (suspended for 4 months). Not appealed.
870730:  Suspension of NJP imposed and suspended on 870626 for a period of four (4) months is hereby vacated and the punishment executed on 870622.

 870730:  NJP for violation of UCMJ, Article 86: In that SNM failed to be at his appointed place of duty, to wit: Restriction sign-in, 4thBn, 10thMar, 2dMarDiv, FMF, CamLej, at on or about 0700, 0900, and 1300, 870712.
         Award: Forfeiture of $329.00 per month for 1 month (suspended for 4 months), restriction and extra duty for 30 days, reduction to E-1 (suspended for 4 months). Not appealed.
870731:  Counseled for deficiencies in performance and conduct. [You have established a pattern of misconduct as evidenced by your accumulating 2 battalion level NJP's which resulted in reduction in rank, restriction and extra duties, as well as forfeiture of pay. You have failed to report to the appointed place of duty in a timely manner, and failed to follow written orders pertaining to your duties.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
880113:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 121: In that SNM did, at Ft Bragg, NC wrongfully appropriate a HUMMV (Mrc 138), of a value of about $39,000, the property of the 10thMar, 2dMarDiv, FMF, CamLej. Charge II: violation of the UCMJ, Article 91: In that SNM was disrespectful in language toward Sgt J_____ J. B____, U.S. Marines, by saying to him "Fuck You, Bitch" or words to that effect, at on or about 871110. Charge III: violation of the UCMJ, Article 86: In that SNM was absent from his unit, to wit: 4thBn, 10thMar, 2dMarDiv, FMF, CamLej, from on or about 871123, to on or about 871128. Charge IV: violation of the UCMJ, Article 86: In that SNM was absent from his unit, to wit: Regimental Police Shed, 10thMar, 2dMarDiv, FMF, CamLej, at on or about 871228.
          Finding: to Charge I and II and the specification thereunder, guilty. To Charge III and the specification thereunder, guilty for only so much of the specification as pertains to 871124 to 871128. To Charge IV and the specification thereunder, guilty.
         Sentence: Forfeiture of $447.00 pay per month for 1 month, confinement for 30 days, reduced to E-1.
         CA action 880119: Sentence approved and ordered executed.
880219:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.
880219:  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.
880224:  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 the respondent's summary court-martial conviction of 880113, his nonjudicial punishments of 870726 and 870720, and his adverse page 11 entry of 870731.

880307:  SJA review determined the case sufficient in law and fact.

 880308:  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 880318 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).
Issue 1. Upon review of available records, the Board found no impropriety concerning the applicant's enlistment guarantees and subsequent MOS assignment. Relief denied.
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 a summary court-martial on another occasion. 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. 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. Relief denied.

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 P1900.16C), Change 4, effective 29 Jul 87 until 26 Jun 89.
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, unauthorized absence; Article 91, disrespect to a NCO; 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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