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USMC | DRB | 2001_Marine | MD01-00997
Original file (MD01-00997.rtf) Auto-classification: Denied


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

ex-LCpl, USMC
Docket No. MD01-00997

Applicant’s Request
The application for discharge review, received 010730, requested that the characterization of service on the discharge be changed to general/under honorable conditions. 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 of the discharge shall not change. The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/Conduct triable by courts-martial (request for discharge for the good of the service), authority: MARCORSEPMAN Par. 6419.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION


 Issues

1. At the time of my separation from the Marine Corps I had been going through a family crisis and some personal problems which I really didn't know how to handle. For the past nine years I've lived with the regret of leaving the Marine Corps. At the time I am asking for my re-enlistment code to be upgraded from an RE-4 to an RE-3 so that I may re-enter the Marine Corps.

 Documentation
In addition to the service record, we were unable to obtain the discharge processing package. 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)                900208-900312    COG

 Period of Service Under Review :
Date of Enlistment: 900313               Date of Discharge: 920421

 Length of Service (years, months, days):

         Active: 02 00 01
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 50

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.9 (3)                       Conduct: 3.9 (3)

 Military Decorations: None

 Unit/Campaign/Service Awards: Rifle Expert, NDSM

 Days of Unauthorized Absence: 38

 Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/Conduct triable by courts-martial (request for discharge for the good of the service), authority: MARCORSEPMAN Par. 6419.

 Chronological Listing of Significant Service Events :

The applicant’s discharge package is missing from his service record.

910812:  Counseled for deficiencies in performance and conduct. [Financial responsibilities, a dishonorable act of cashing check when funds are not available in your checking account to cover said checks can constitute intent to defraud which is a military offense and in such case, disciplinary action can be taken. The following personal checks written by you have been returned to the command. Check # 131 FOR $17.65, Check # 142 for $21.05, Check # 148 for $22.40, and Check # 154 and 155 for a total of $6.55 plus service charge to MWR in the amount of $95.00. Your Platoon Sergeant has been directed to insure you make restitution to the MWR NLT COB on 910815 and notify Det SgtMaj. Additionally, on 910806 the command received a call from G C Corp in Borman, Missouri seeking command help in liquidating a delinquent $600.00 bill you had with them. CWO3 W____ is assisting you in the settlement of this account. You are advised that this counseling or continued financial irresponsibility could result in and/or denial of promotion, and/or reenlistment, and/or may warrant administrative action such as early discharge. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

910827:  Counseled for deficiencies in performance and conduct. [Job performance, tardiness (UA), attitude, and keeping your chain of command informed. Specifically, being dropped from 2d FSSG Coaches School 910805 to 910809 for absenteeism disqualifying you from being able to accomplish your primary duty; UA periods on 910822 and 910823, absent from field day on 22nd and 1 1/2 hours UA period on the 23rd; poor un-marine like attitude in approach to your job, continuously putting forth a negative attitude vice a positive attitude; not informing your chain of command of your financial problems resulting in numerous hours of command attention after the fact]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

910911:  To UA, 1331 910911.

910916:  From UA, Surrendered 0700, 910916.

911209:  To UA, 0731, 911209.

911212:  From UA, Surrendered 1000, 911212 at I-I STF, 3DBN, 23DMAR, 4THMARDIV, NEW ORLEANS, LA. Issued orders and transferred to report NLT 2400, 911212.

911213:  To UA 0001, 911212.

920111:  From UA, Surrendered 2015, 920111.

920113:  To UA, 0731, 920113.

920115:  From UA, Surrendered 0700, 920115.


PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

 Discussion

The applicant was discharged on 920421 under other than honorable conditions in lieu of trial by court-martial (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. 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. Concerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces. Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment. A request for waiver is normally done only during the processing of a formal application for enlistment through a recruiter. Relief is therefore denied.

 Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question. No such error or injustice is evident 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 6419, SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16D), effective 27 Jun 89 until 17 Aug 95.

 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.
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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