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USMC | DRB | 2001_Marine | MD01-00983
Original file (MD01-00983.rtf) Auto-classification: Denied


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

ex-PFC, USMC
Docket No. MD01-00983

Applicant’s Request
The application for discharge review, received 010725, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a documentary record discharge review. The applicant designated the American Legion as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 011218. 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 characterization of discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1. (Equity Issue) This former member proffers that an adjustment disorder which was evaluated twice during his service period partly mitigated his misconduct of record. On this basis, and given the relatively minor nature of his violations, he opines that separation under honorable conditions is warranted.

 2. (Equity Issue) This former member further 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:
Copy of DD Form 214 (2 copies)
Character Reference letter from B_ T_, Sheriff of L_ C_ dtd June 19, 2001
Character Reference letter from K_ C. A_, Circuit Court Clerk dtd June 19, 2001
 Character Reference letter from M_ T. J_, Eleventh Judicial Circuit Judge dtd June 19, 2001
Character Reference letter from S_ R. G_, District Attorney dtd June 19, 2001
Letter of Recommendation from J. D_ E_, Ch Asst District Attorney dtd June 19, 2001
Character Reference letter from D_ D. M_, Judge of Probate dtd June 19, 2001
Character Reference letter from H_ L_, Dir, L_ C_ Work Release Program dtd June 19, 2001
Letter of Employment from G_ R_, Chief Deputy, L_ C_ Sheriff's Dept dtd June 19, 2001
Character Reference letter from J_ R_, Administrator, L_ C_ Detention Center dtd June 19, 2001
Northwest-Shoals Community College letter dtd March 10, 1998
Northwest-Shoals Community College transcripts
Northwest-Shoals Community College Dean's List Certificate of Commendation
Alabama Corrections Academy Certificate of Completion (80 hours Jail Management Course) dtd Aug 13, 1999

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                850723 - 850903  COG

 Period of Service Under Review :
Date of Enlistment: 850904               Date of Discharge: 880705

 Length of Service (years, months, days):

         Active: 02 10 02
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 76

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.0 (7)              Conduct: 3.8 (7)

 Military Decorations: None

 Unit/Campaign/Service Awards: LoA (3)

 Days of Unauthorized Absence: None

 Character, Narrative Reason, and Authority of Discharge (at time of issuance - which was incorrect):

UNDER OTHER THAN HONORABLE CONDITIONS/Unsatisfactory Performance - Unsatisfactory Performance of duties (admin discharge board not required), authority: MARCORSEPMAN Par. 6206.3.

 Chronological Listing of Significant Service Events :

860305:  Counseled for deficiencies in performance and conduct [violent thoughts, suicidal ideations, and vegetative signs of depression - personality adjustment disorder]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
870724:  NJP for violation of UCMJ, Article 86: failed to be at appointed place of duty 0731, 870605 - 870608 at CRF; violation of UCMJ, Article 108: at 0710, 870703 destroyed the wall in the guard shack and through things around in the Guard Shack.
 Awarded restriction for 30 days (suspended for 6 months), reduction to E-2. Not appealed.
871111:  Counseled for deficiencies in performance and conduct [poor performance by failing the PFT]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
871111:  Counseled for deficiencies in performance and conduct [substandard personal appearance at a daily inspection]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
871123:  NJP for violation of UCMJ, Article 89: disrespect towards a Commissioned Officer.
         Award: Restriction for 30 days and extra duty for 14 days. No indication of appeal in the record.
871214:  Counseled for deficiencies in performance and conduct [disrespect toward a commissioned officer by using negative vocal mannerisms]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

880609:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct , specifically a pattern of misconduct.
880609:  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.
880609:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

880614:  SJA review determined the case sufficient in law and fact.

880617:  GCMCA [CG, Marine Corps Air Ground Combat Center] 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 880705 under other than honorable conditions for misconduct due to a pattern of misconduct (A and B) and not by reason of unsatisfactory performance as reflected on the DD Form 214. 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. The Board found that the applicant’s diagnosed adjustment disorder did not mitigate his misconduct. 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 a characterization of service under honorable conditions. 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 P1900.16C), 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, absent from place of duty; Article 89, disrespect to a superior commissioned officer; and Article 108, destruction of military property.
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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