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USMC | DRB | 2001_Marine | MD01-01092
Original file (MD01-01092.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD01-01092

Applicant’s Request
The application for discharge review, received 010820, 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 closest to Palm Beach, FL. The applicant did not list any representative on the DD Form 293. In the acknowledge 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 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, authority: MARCORSEPMAN Par. 6210.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. I am not appealing my status of discharge because I feel that it was wrong, but I am appealing my status because I would like to re-enlist. I am more mature now and I now have a family to support. I feel as if things will be different this time around.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copies of DD Form 214 (2)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              None
         Inactive: USMCR(J)                970315 - 970327  COG

 Period of Service Under Review :
Date of Enlistment: 970328               Date of Discharge: 990728

 Length of Service (years, months, days):

         Active: 02 04 03
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

Education Level: 12                        AFQT: 32

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.8 (8)                       Conduct: 3.8 (8)

 Military Decorations: None

 Unit/Campaign/Service Awards: GCM

 Days of Unauthorized Absence: 3

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MARCORSEPMAN Par. 6210.3.

 Chronological Listing of Significant Service Events :

971204:  Counseled for deficiencies in performance and conduct. Not being at appointed place of duty at prescribed time, to wit, failed to be at the rifle range at 0330 which resulted in you being dropped from the range: Specific reason for counseling. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued

980828:  NJP for violation of UCMJ, Article 86: Did at HP 512 on board CLNC on or about 1400, 980815 did absent himself from his appointed place of duty, to wit, ADNCO at HP 512, and did remain so absent until approximately 0400, 980816. SNM left his post without authority to conduct personnel business.
         Award: Correctional Custody for 30 days. Not appealed.

981028:  Counseled for deficiencies in performance and conduct. Failure to obey Base Order by driving on base without car insurance, invalid license plates, and invalid base registration. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued

981116:  NJP for violation of UCMJ, Article 86: (3 Specifications), Spec 1: On or about 0400, 981028 did absent himself from appointed place of duty, to wit, CBIRF Motor pool and did remain so absent until 0500, 981028, Spec 2: On or about 1800, 981029 did absent himself from appointed place of duty, to wit, field day formation, Spec 3: On or about 0800, 981031 did absent himself from appointed place of duty, to wit, field day formation.
         Award: Restriction and extra duty for 30 days, reduction to E-2. Not appealed.

990408:  NJP for violation of UCMJ, Article 86: On or about 0801, 990321 did absent himself from appointed place of duty, to wit, failed to return from leave until 0510, 990324.
         Award: Restriction and extra duty for 45 days (15 days suspended for 3 months), reduction to E-1. Not appealed.

990428:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.
990428:  Applicant advised of his rights and having elected not to consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
990503:  Counseled for deficiencies in performance and conduct. Concerning your recent Proficiency and Conduct marks of 4.3 and 3.9. Per MCO P1070.12 par. 4007.6c and 7c. These marks are a result of: poor performance, immaturity, lack of respect toward your superiors and failure to put forth any effort or attention to your duties. Necessary corrective actions explained, sources of assistance provided.

990507:  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 upon pattern of misconduct as documented in the members service record book.

990604:  Waiver of Administrative Discharge Board.

990713:  SJA review determined the case sufficient in law and fact. Extracted from Commanding General's message.

990714:  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 990728 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).

 The applicant’s issue states: “I am not appealing my status of discharge because I feel that it was wrong, but I am appealing my status because I would like to re-enlist. I am more mature now and I now have a family to support. I feel as if things will be different this time around.” The NDRB will not change a discharge to allow a former service member the opportunity to re-enter any branch of military service. The applicant should consult his local recruiter concerning reenlistment opportunities. Relief is not warranted.

 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 clemency, based on post-service conduct. The applicant did not provide any of these documents. 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.

Pertinent Regulation/Law (at time of discharge)

 A. Paragraph 6210, MISCONDUCT , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 18 Aug 95 until Present.

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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