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USMC | DRB | 2001_Marine | MD01-00971
Original file (MD01-00971.rtf) Auto-classification: Denied


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

ex-PFC, USMC
Docket No. MD01-00971

Applicant’s Request
The application for discharge review, received 010719, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed to discharged. 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 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 and narrative reason of the discharge shall not change. The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct-Pattern of misconduct (with administrative discharge board), authority: MARCORSEPMAN Par. 6210.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

Prior to the documentary discharge review, the applicant introduced no issues as block 8 on the DD Form 293 is blank.

Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214
Statement from applicant
Character reference from applicant's wife
Character reference from applicant's daughter
Character reference from applicant's daughter
Character reference from Chief Warrant Officer 2 dated June 11. 2001
Character reference from investigator, Neiman Marcus dated June 10, 2001
Character reference dated March 30, 1998
Character reference from Commander dated April 4, 1994
Job/Character reference from resident manager dated September 19, 1994
Character reference from guidance counselor dated March 31, 1992
Copy of high school diploma
Copy of certificate of completion of training/blueprint reading and drafting dated December 9, 1992
Copy of certificate of completion of training/electrical maintenance 1 dated December 6, 193
Transcript from Honolulu Community College
Copy of certificate of completion of HVAC certified/technician type 1 dated October 7, 1999
Sales receipt for HVAC test dated September 25, 1999
Copy of field employee performance evaluation dated April 29, 2000
Copy of field employee performance evaluation dated May 5, 2000
Copy of field employee performance evaluation dated May 11, 2000
Copy of field employee performance evaluation dated May 19, 2000
Copy of field employee performance evaluation dated June 1, 2000
Copy of field employee performance evaluation dated June 14, 2000
Copy of field employee performance evaluation dated April 26, 2001
Copy of two birth certificates for applicant's daughters
Sixty-five page from applicant's service record

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                870730 - 880207  COG

 Period of Service Under Review :
Date of Enlistment: 880207               Date of Discharge: 910906

 Length of Service (years, months, days):

         Active: 03 06 29
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 34

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.8 (10)             Conduct: 3.7 (10)

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR, SASM with 2 Stars, NDSM, CAR

 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 (with administrative discharge board), authority: MARCORSEPMAN Par. 6210.3.

 Chronological Listing of Significant Service Events :

891205:  Counseled for deficiencies in performance and conduct. [Your disrespectful attitude toward superiors and authority. Additionally, you have failed to properly voice your grievances through the chain of command]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued
891206:  NJP for violation of UCMJ, Article 91 (2 specs):
 Specification 1: Willfully disobeyed order by Sgt to "sit down and be quiet" on 2010, 25Sep89.
Specification 2: Willfully disobeyed order by Cpl to "shut up and sit down" on 2010, 25Sep89.
Violation of UCMJ, Article 117: Wrongfully used provoking word, "Cpl M_ , If you feel like hitting or beating on me, you can" on 2010, 25Sep89.
Awarded forfeiture of $175.00 per month for 1 month, restriction and extra duties for 14 days. Not appealed.
900105:  Counseled for deficiencies in performance and conduct. [Involvement in activities violating articles of the UCMJ establishing a pattern of misconduct]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued
900612:  NJP for violation of UCMJ, Article 86:
 Specification: Unauthorized absence from 1300, 6Jun90 to 0730, 7Jun90.
Awarded forfeiture of $200.00 per month for 1 month, restriction and extra duty for 14 days. Forfeiture and restriction suspended for 3 months. Not appealed.
910319:  NJP for violation of UCMJ, Article 86:
 Specification: Fail to go at the time prescribed to appointed place of duty, to wit: Hole 6 at the defensive perimeter.
Awarded forfeiture of $400.00 per month for 1 month, restriction for 45 days, reduction to PFC. Forfeiture and restriction suspended for 6 months. Not appealed.
910620:  NJP for violation of UCMJ, Article 91:
 Specification: Disrespectful to SSgt by saying to him "I don't gotta do nothing".
Awarded forfeiture of $197.00 per month for 1 month, extra duties for 14 days. Not appealed.
910620:  Counseled for deficiencies in performance and conduct. [Concerning the following deficiencies: Numerous page 11's, and numerous NJP's that you have received concerning substandard performance]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued
910703:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.
910703:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
910717:  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 your numerous nonjudicial punishments.

910725:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed misconduct due to a pattern of misconduct, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

910812:  SJA review determined the case sufficient in law and fact.

910814:  GCMCA [Commanding General, 1 st Marine Expeditionary Brigade] 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 910906 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 applicant introduced no decisional issues for consideration by the Board.

However, the following is provided in response to the applicant’s statement and documentation provided. The applicant’s record contains testimony from fellow Marines who supported the applicant during his Administrative Discharge Board. However, the Board found insufficient evidence to support the assertion that the applicant was treated unfairly during his enlistment or during his discharge board proceedings. While he may feel that a lack of support was a factor that contributed to his actions, 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. No other narrative reason for separation other than misconduct more clearly describes the conditions surrounding his discharge. Relief denied.

 The Veterans Administration determines eligibility for post-service benefits, not the NDRB. There is no requirement or law that grants recharacterization solely on the issue of obtaining veterans’ benefits and this issue does not serve to provide a foundation upon which the Board can grant relief. The Board’s charter limits its review to a determination on the propriety and equity of the discharge. In the applicant’s case the Board could discern no impropriety or inequity and therefore considered the applicant’s discharge was proper and equitable.

 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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