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USMC | DRB | 2001_Marine | MD01-01126
Original file (MD01-01126.rtf) Auto-classification: Denied


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

ex-PVT, USMC
Docket No. MD01-01126

Applicant’s Request
The application for discharge review, received 010824, 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 list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020417. 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 HONORABLE CONDITIONS GENERAL/INVOL DIS (BOARD WAIVED) (MISCONDUCT) MINOR DISP INF, authority: MARCORSEPMAN Par. 6210.2.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. At the time of my discharge my C.O. put me in for an O.T.H., at the advisement of my lawyer, I requested a hearing, my lawyer also sent a request to the command general saying I would waive for a hearing if I was granted a discharge under honorable conditions and to be discharged for my weight, which I do believe the general granted. Although I did make some mistakes as a hard head young punk, I believe that the three NJP's and the infractions I committed are not major infractions and should not have kept me from receiving an honorable discharge had I fulfilled my 4 yr. commitment. Since my discharge was based largely on my weight problem and not my NJP's I request the change.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
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)                920321 - 921115  COG

 Period of Service Under Review :
Date of Enlistment: 921116               Date of Discharge: 950811

 Length of Service (years, months, days):

         Active: 02 08 26
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

Education Level: 12                        AFQT: 69

 Highest Rank: PFC

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.8 (7)              Conduct: 3.6 (7)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, Rifle Expert Badge, LOA (2)

Days of Unauthorized Absence: None

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

UNDER HONORABLE CONDITIONS GENERAL/INVOL DIS (BOARD) (MISCONDUCT) INVOL DIS (BOARD WAIVED)MINOR DISP INF, authority: MARCORSEPMAN Par. 6210.2.

 Chronological Listing of Significant Service Events :

931102:  Counseled for deficiencies in performance and conduct [Being overweight]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

940321:  Counseled for deficiencies in performance and conduct [Failure to maintain sufficient funds in checking account. Failure to pay my bills in a timely manner]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

940505:  Counseled for deficiencies in performance and conduct [Being UA from remedial PT on 940419 and 940421. I was also UA on same days when showing up for work. I showed up at 0750 on day I missed remedial PT rather than 0715]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

940505:  Counseled for deficiencies in performance and conduct [Being disrespectful of the SNCO's and NCO's within Fuel Branch. I have been caught lying to the SNCO's and NCO's while being given guidance on maintaining sufficient amount of funds in my checking account]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

940519:  NJP for violation of UCMJ, Article 92: SNM disobeyed a lawful order to bring in Alpha uniform to be inspected.
         Award: Extra duty for 45 days, reduction to E-1. Not appealed.
940601:  Counseled for deficiencies in performance and conduct [Being UA from remedial PT on 940517 after being told to show up by SNCO]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

940610:  Counseled for deficiencies in performance and conduct [Being overweight]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

940817:  Counseled for deficiencies in performance and conduct [SMN received conduct marks of 3.9 on 940731 due to pending NJP for disobedience to an NCO and failure to be in appointed place of duty, and not performing to the high standards of conduct expected by a U.S. Marine]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

941014:  NJP for violation of UCMJ, Article 123a: Issued two checks to Tustin Barber shop without having sufficient funds; violation of UCMJ, Article 107: On 940922, at 1015, SMN made a false statement to his SNCO by stating he no longer had a checking account and was not writing checks.
          Award: Forfeiture of $416.00 pay per month for 2 months, and extra duty for 30 days. Not appealed.
950123:  Counseled for deficiencies in performance and conduct [Failure to make sufficient progress while assigned to the squadron weight control program]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

950421:  NJP for violation of UCMJ, Article 86: At 0800, UA from remedial PT.
          Award: Forfeiture of $100.00 pay per month for 1 month, restriction and extra duty for 15 days. Not appealed.
950510:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions.
950510:          Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
950522:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions. The factual basis for this recommendation was your numerous page 11 entries and NJP's.

950711:  Applicant conditional waiver of rights to Administrative Discharge Board.

950714:  SJA review determined the case sufficient in law and fact.

950719:  GCMCA [Commanding General, 3d Marine Aircraft Wing] directed the applicant's discharge general under honorable conditions by reason of misconduct due to minor disciplinary infractions.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 950811 under honorable conditions general for misconduct due to minor disciplinary infractions (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 disagrees with the applicant’s assertion that his overall service record warrants an honorable discharge and that his discharge is based primarily on his weight control performance. The applicant was administratively separated for minor disciplinary infractions. When a Marine’s service has been honest and faithful, it is appropriate to characterize that service as honorable. A characterization of service of under honorable conditions (general) 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 adverse counseling entries on other occasions. The applicant’s performance evaluation averages do not support a characterization of honorable service. 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 to honorable would be inappropriate. It must be noted that most Marines serve honorably and well and therefore earn honorable discharges. In fairness to those Marines, commanders and separation authorities are tasked to ensure that undeserving Marines receive no higher characterization than is due. Relief denied.

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 P1900.16D), 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; Article 92, failure to obey a lawful general order; Article 123, insufficient funds.
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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