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USMC | DRB | 2001_Marine | MD01-01095
Original file (MD01-01095.rtf) Auto-classification: Denied


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

ex-Cpl, USMC
Docket No. MD01-01095

Applicant’s Request
The application for discharge review, received 010820, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed to administrative separation. 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 or the reason for discharge. The Board’s vote was unanimous that the character and reason for the discharge shall not change. The discharge shall remain: UNDER HONORABLE CONDITIONS GENERAL/Misconduct – Minor disciplinary infractions (with administrative discharge board), authority: MARCORSEPMAN Par. 6210.2.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. My discharge was inequitable because both the Commanding Officer and NCOIC used one specific incident not only to characterize my military service, but also to discharge me from the United States Marine Corps.

2. My entire service record was not reviewed, or was reviewed with prejudice when the decision for a general discharge was made. The attached documents from my service record book will prove that through training and actions my service to the country and corps were honorable and deserves an honorable discharge with all the rights, privileges and responsibilities it bears.

3. The characterization of my discharge, "Pattern of Misconduct", was grossly distorted in my almost 6 years of service, up to the most recent non judicial punishment, the previous article 13 offenses are equivalent to being late for work and having sunburn at work.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copies from Service Record (8pgs)
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              None
         Inactive: USMCR(J)                871016 - 880530  COG

 Period of Service Under Review :
Date of Enlistment: 880531               Date of Discharge: 940218

 Length of Service (years, months, days):

         Active: 05 08 18
         Inactive: None

 Age at Entry: 17                          Years Contracted: 6

 Education Level: 12                        AFQT: 58

 Highest Rank: Sgt

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.46 (15)            Conduct: 4.4 (15)

 Military Decorations: None

 Unit/Campaign/Service Awards: Meritorious Mast (2), MUC, SSDR, NDSM, SASM (3), ASR (2), NUC (3), KLM, GCM, JMUA, LOA

Days of Unauthorized Absence: None

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

UNDER HONORABLE CONDITIONS GENERAL/Misconduct-Minor disciplinary infractions (with administrative discharge board), authority: MARCORSEPMAN Par. 6210.2.

 Chronological Listing of Significant Service Events :

890601:  NJP for violation of UCMJ, Article 92: At MCAS CherPt, 890529, violate BnO 1601.1k, by leaving the Air Station without checking out with the duty NCO while on duty section.
 Awarded forfeiture of $180.00 pay per month for 1 month, restriction and
extra duties for 14 days (restriction for 7 days suspended for 6 months). Not appealed.
890601:  Counseled for deficiencies in performance and conduct. Unauthorized absence, below average performance in your MOS and collateral duties assigned, abuse of Government Property (i.e: Physical Abuse to your body by incurring 2 nd degree sunburn) that can be judged as malingering. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

900320:  NJP for violation of UCMJ, Article 86: At MCAS CherPt, failed to go at the prescribed time to rifle range at 0630, 900305.
         Award: Forfeiture of $196.00 pay per month for 1 month (suspended for 6 months), restriction and extra duty for 14 days. Not appealed.
930909:  Counseled for deficiencies in performance and conduct. In that you utilized poor judgment and failed to perform as a Senior NCO. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

931203:  NJP for violation of UCMJ, Article 92: Disobedience of a lawful order, to wit: At the Naval Aviation Depot, MCAS CPNC, during the period of October 1993 to November 1993, Sgt N_____ did knowingly and repeatedly disobey orders of his superiors by charging in excess of $250.00 in personal phone calls on official telephone lines. Violation of UCMJ Article 134: Obtaining service under false pretenses, to wit: Sgt N_____ at the Naval Aviation Depot, MCAS CPNC, during the period of October 1993 to November 1993, knowingly that pretenses was false, did knowingly and wrongfully make personal phone calls on government lines in excess of $250.00.
         Award: Forfeiture of $606.00 per month for 1 month, restriction and extra duty for 45 days, reduction to E-4. Not appealed.

931207:  Counseled for deficiencies in performance and conduct. Pattern of misconduct of the UCMJ as documented by your 3 office hours and 2 prior pg 11 entries. Applicant advised of administrative separation proceedings and afforded opportunity to make written rebuttal to this entry.

940128:  Applicant notified of intended recommendation for discharge under honorable conditions general by reason of misconduct due to minor disciplinary infractions.
940131:          Applicant advised of his rights and having elected 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.

940201:  Commanding officer recommended discharge under honorable conditions general by reason of misconduct due to minor disciplinary infractions. The factual basis for this recommendation was your discreditable involvement with authorities during this enlistment as evidenced by your three non judicial punishments, and other adverse entries contained on page 11 of your service record.

940209:  SJA review determined the case sufficient in law and fact. Extracted from CG's message.

940209:  GCMCA, Commanding General, Marine Corps Air Station, Cherry Point, directed the applicant's discharge under honorable conditions general by reason of misconduct due to minor disciplinary infractions.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 940218 under honorable conditions general 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).

 The applicant’s first issue states: “My discharge was inequitable because both the Commanding Officer and NCOIC used one specific incident not only to characterize my military service, but also to discharge me from the United States Marine Corps.” Contrary to the applicant’s contention that one specific incident formed the basis for separation, the record shows the applicant was discharged for a pattern of minor disciplinary infractions (three NJP’s in his enlistment). The NDRB found no inequity in the discharge. Relief is not warranted.

The applicant’s second issue states: “My entire service record was not reviewed, or was reviewed with prejudice when the decision for a general discharge was made. The attached documents from my service record book will prove that through training and actions my service to the country and corps were honorable and deserves an honorable discharge with all the rights, privileges and responsibilities it bears.” Marine Corps Regulations state: “Characterization of service normally shall be under other than honorable conditions, but characterization as under honorable conditions (general) may be warranted in some circumstances.” Clearly, the Commanding Officer, carefully considered the applicant’s entire service record in making the recommendation for a under honorable conditions (general) discharge. The NDRB found the applicant’s discharge equitably assigned as under honorable conditions- general. Relief is not warranted.

The applicant’s third issue states: “The characterization of my discharge, "Pattern of Misconduct", was grossly distorted in my almost 6 years of service, up to the most recent non judicial punishment, the previous article 13 offenses are equivalent to being late for work and having sunburn at work.” The Board found the basis for the discharge was three NJP’s in the applicant’s enlistment. While the applicant contends the basis for the discharge is “grossly distorted”, the NDRB found no impropriety or inequity in the discharge. Relief is denied.

 The applicant requested the NDRB change the reason for discharge to: “Administrative Separation.” The NDRB, under its responsibility to examine the propriety and equity of an applicant's discharge, will change the reason for discharge if such a change is warranted. The summary of service clearly documents that minor disciplinary infractions was the reason the applicant was discharged. No other Narrative Reason for Separation could more clearly describe why the applicant was discharged. To change the Narrative Reason Separation would be inappropriate.

The NDRB is authorized to consider post-service factors in the re characterization of a discharge. 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 the civilian life subsequent to leaving the service. Normally, to permit relief, an error or injustice must have been found to have existed during the period of enlistment in question. Outstanding post-service conduct, 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, may be considered by the NDRB. The applicant failed to provide documentary evidence to demonstrate his positive community service, employment history, and clean police record. Relief is not warranted.

The applicant remains eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge. Representation at personal appearance hearing is recommended .

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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