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USMC | DRB | 2001_Marine | MD01-01096
Original file (MD01-01096.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD01-01096

Applicant’s Request
The application for discharge review, received 010814, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a documentary record discharge review. The applicant did not designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020320. 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. There are several issues that need addressing. I can not be there because I do not have the transportation. This is a matter of severe importance to me. My entire career and life is at stake here.

2. A Marine accused me of doing a horrible act that I did not do and I was also accused of other things which I am also innocent of. I don't know how to convince you gentlemen that I am innocent but I hope you believe me. I want to serve my country and be proud, but I can't do that right now because of what one of my "so called comrade" did to me.

3. Please help me do for my country the service that I want to do. I pray that you all make the right choice. I was a good Marine, ask MgSgt J_ N_, Msgt T_ W_, Sgt D_ S_, Capt B_, Maj P_. In Jesus Name, I Pray. (Signed Applicant)

 Documentation
Only the service and medical records were reviewed, as the applicant did not provide additional documentation for the Board to consider.

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                96121 - 970707   COG

 Period of Service Under Review :
Date of Enlistment: 970708               Date of Discharge: 990129

 Length of Service (years, months, days):

         Active: 01 06 22
         Inactive: None

 Age at Entry: 17(Parent Consent)  Years Contracted: 4

Education Level: 12                        AFQT: 59

 Highest Rank: PFC

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.3 (6)              Conduct: 3.3 (6)

 Military Decorations: None

 Unit/Campaign/Service Awards: Rifle Marksmanship Badge

 Days of Unauthorized Absence: None

 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 :

980421:  NJP for violation of UCMJ, Article 92: On or about 3 Apr 98, knowingly failed to obey BnO 1700.1d, by consuming alcohol while being under the legal age to do so.
 Awarded forfeiture of $251.00 per month for 1 month, restriction and
extra duties for 14 days. Not appealed.
980611:  NJP for violation of UCMJ, Article 92: On or about 31 May 98, knowingly failed to obey BnO 1700.1D, by consuming alcohol while being under the legal age to do so.
         Award: Forfeiture of $519 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2. No indication of appeal in the record.
980629:  Counseled for deficiencies in performance and conduct [violation of UCMJ Article 92 on 3 Apr 98 and 31 May 98]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
981106:  NJP for violation of UCMJ, Article 92: On or about 2 Oct 98, knowingly failed to obey BnO 1700.1D, by consuming alcohol while being under the legal age to do so.
         Award: Forfeiture of $300 per month for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.
990105:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by 3 NJPs for underage drinking.

990105:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

990105:  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 his pattern of misconduct.

990112:  Applicant waived administrative discharge board hearing, but requested retention in the Marine Corps or at the very least grant a service characterization of General (Under Honorable Conditions).

990128:  GCMCA [Commander, 1 st MarDiv (Rein)] 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 990129 under other than honorable conditions for misconduct due to a pattern of misconduct (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 Board Determined that the applicant’s issue 1 is a non-decisional issue and requires no further comment or consideration by the board. Relief denied.

Issue 2. A characterization of service of 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 three occasions and an adverse counseling entry on another occasion. The Board found no evidence that the applicant was unfairly charged with these offenses. 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 an honorable characterization of service. An upgrade would be inappropriate. Relief denied.

Issue 3. 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 and maintaining sobriety, 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 P1900.16E), effective 31 Jan 97 until Present.

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 92, failure to obey a lawful general order.
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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