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USMC | DRB | 2001_Marine | MD01-00970
Original file (MD01-00970.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD01-00970

Applicant’s Request
The application for discharge review, received 010719, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a personal appearance hearing in the Washington National Capital Region. The applicant listed the Texas Veterans Commission as the representative on the DD Form 293. In the acknowledgement letter to the applicant, the applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing. Subsequent to the application, the applicant changed representation to the American Legion.

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 – Minor disciplinary infractions (administrative discharge board required but waived), authority: MARCORSEPMAN Par. 6210.2.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. (Equity Issue) This former member requests that the Board include provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application.

Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Character reference dated June 18, 2001
Character reference dated June 9, 2001
Character reference dated March 30, 2001
Character reference dated March 30, 2001
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                880805 - 890810  COG
                  USMCR(J)                 891013 - 891017  COG

 Period of Service Under Review :
Date of Enlistment: 891018               Date of Discharge: 930415

 Length of Service (years, months, days):

         Active: 03 05 28
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 59

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.2 (11)             Conduct: 3.8 (11)

 Military Decorations: Rifle Expert Badge

 Unit/Campaign/Service Awards: Letter of Appreciation, NDSM, OSR

 Days of Unauthorized Absence: 22

 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 :

910208:  NJP for violation of UCMJ, Article 92 (2 specs):
 Specification 1: Violate MCO P5512.11A by failing to carry his armed forces ID card upon his person on 910113.
Specification 2: Violate COMNAVFORJAPAN Inst 5800.9N by knowingly failing to possess his USFJ Form 4 (driver's license) while driving a vehicle.
Violation of UCMJ, Article 111:
Specification: Drove a vehicle while drunk (BAC 0.268%).
Awarded forfeiture of $203.00 per month for 1 month, restriction and extra duties for 14 days. Not appealed.
910211:  Counseled for deficiencies in performance and conduct. [Alcohol related incident, specifically DUI with a BAC of .268]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

 910820:  NJP for violation of UCMJ, Article 86:
 Specification: Failed to go at the time prescribed to morning muster at 0430, 17Jul91.
Violation of UCMJ, Article 134 (2 specs):
Specification 1: Between Nov90 and Dec90 have sexual intercourse with a married woman not his wife.
Specification 2: Make a false official statement on 17Jul91, to wit: "I have not checked C_ P_ into Marine Barracks before.
Awarded forfeiture of $422.00 per month for 2 months, reduction to PFC. Not appealed.
910820:  Counseled for deficiencies in performance and conduct. [Alcohol abuse, failure to be at appointed place of duty, lack of honesty, failure to follow orders and regulations, and conduct detrimental to the good order and discipline of the unit]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

920514:  Counseled for deficiencies in performance and conduct. [Multiple infractions with military authorities and violation of the UCMJ]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

 920921:  NJP for violation of UCMJ, Article 86:
 Specification: Absent himself from unit 0531 - 2000, 8Sep92.
Awarded forfeiture of $213.00 per month for 1 month, restriction and extra duties for 14 days. Not appealed.
921217:  NJP for violation of UCMJ, Article 92:
 Specification: Having knowledge of BO P5560.2J violated the same by driving on base revocation on ____, 21Nov92.
Violation of UCMJ, Article 107:
Specification: Made a false official statement to ____ pertaining to use of a vehicle on ____, 21Nov92.
Violation of UCMJ, Article 86:
Specification: Unauthorized absence 1801, 12Sep92 to 1927, 13Oct92.
Awarded forfeiture of $363.00 per month for 1 month, restriction for 30 days, reduction to Pvt. Not appealed.
930305:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions.
930305:  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.

930309:  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 four nonjudicial punishments which were conducted 8 February 1991, 20 August 1991, 21 September 1992 and 17 November 1992.

930329:  SJA review determined the case sufficient in law and fact.

930330:  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 930415 under other than honorable conditions for misconduct due to minor disciplinary infractions (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 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. 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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