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USMC | DRB | 2002_Marine | MD02-00523
Original file (MD02-00523.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD02-00523

Applicant’s Request
The application for discharge review, received 020308, 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 021121. 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-Pattern of misconduct (administrative discharge board required but waived), authority: MARCORSEPMAN Par. 6210.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1. Marine was forced out of service with unfair discharge (30 day AWOL, listed as 90 days on discharge)

2. Full investigation after discharge proven that unfair treatment by superiors to other Marines lead to retirement & relocation of officers & higher ranking staff, but discharge was upheld do to prior release before investigation.

3. Marine lost school money, veap program. Everything he paid into through deductions savings bonds life insurance health benefits.

4. Marine received an unfair RE:4 code upon discharge, no travel pay & no monthly pay due to unfair deductions & unfair treatment from superiors.

5. Marine request fair review of 1987-1990 service benefit & entitlement. Upgrade for self-esteem & honor recognition of achievements & meritorious masses during period of service Thank you Simper-FI

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant 's DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                870529 - 871004  COG

 Period of Service Under Review :
Date of Enlistment: 871005                        Date of Discharge: 901023

 Length of Service (years, months, days):

         Active: 03 00 19
         Inactive: None

 Age at Entry: 17 Parental Consent                Years Contracted: 4

 Education Level: 12                                 AFQT: 49

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.6 (11)                      Conduct: 3.6 (11)

 Military Decorations: None

 Unit/Campaign/Service Awards: MM, Letter of Appreciation, SSDR

 Days of Unauthorized Absence: 45

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct-Pattern of misconduct (administrative discharge board required but waived), authority: MARCORSEPMAN Par. 6210.3.

 Chronological Listing of Significant Service Events :

880714:  Counseled for deficiencies in performance and conduct. [Possession of unauthorized alcoholic beverage in the BEQ in violation of BnO 1746/3A.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
890914:  Counseled for deficiencies in performance and conduct. [Being UA from appointed place of duty.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
890914:  Applicant informed eligible but not recommended for promotion to CPL for the months of Nov, Dec 89 & Jan 90 due to poor performance of duty and lack of leadership abilities.

891026:  Counseled for deficiencies in performance and conduct. [Substandard performance of duties as a motor vehicle operator. Disregard for passenger safety while operating a government vehicle, poor judgement and overall negative attitude will not be tolerated.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
891206:  NJP for violation of UCMJ, Article 92:
 Specification: Failure to obey a lawful order, to wit: to get a proper haircut.
Awarded forfeiture of $200.00 per month for 2 months, restriction and extra duties for 30 days. Forfeiture of $200.00 suspended for 6 months. Not appealed.
900111:  Applicant informed eligible but not recommended for promotion to Cpl for the Feb, Mar, Apr promotion period because of recent NJP.

900327:  Applicant informed eligible but not recommended for promotion to Cpl for the period of May, June, July 90 promotion period because of being in a UA status.

900503:  Special Court-Martial
         Charge I: violation of the UCMJ, Article 86:
         Specification: Unauthorized absence from 21 Feb 90 until 23 Mar 90 (30 days).
         Findings: to Charge I and specification thereunder, guilty.
         Sentence: Confinement for 60 days, forfeiture of $362 per month for 2 months, reduction to PFC.
         CA 900625: Sentence approved and ordered executed.

900503:  Applicant to confinement.

900621:  Applicant from confinement.

 900622:  Applicant informed eligible but not recommended for promotion to Cpl for the Aug, Sep, and Oct promotion period because of recent SCM.

900726:  Counseled for deficiencies in performance and conduct. [Developing pattern of misconduct as evidenced by one (1) SPCM, one (1) NJP, and seven (7) negative counseling entries.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
900808:  NJP for violation of UCMJ, Article 86:
 Specification: Absent from appointed place of duty on 1800, 2 Aug 90, to wit: field day formation.
Awarded forfeiture of $100.00 per month for 1 month. Not appealed.
900822:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct of discreditable frequent involvement with military authorities.
900822:  Applicant advised of his rights and having elected not 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.

 900926:  NJP for violation of UCMJ, Article 86 (3 specs):
 Specification 1: Absent from place of duty on 0700, 17 Aug 90 - 1330, 21 Aug 90 (4 days/surrendered), to wit: Motor Transport Section.
Specification 2: Absent from place of duty on 0700, 30 Aug 90 - 0900, 10 Sep 90 (11 days/surrendered), to wit: Motor Transport Section.
Specification 3: Absent from place of duty on 0700 - 1645, 18 Sep 90, to wit: Motor Transport Section.
Awarded restriction for 30 days, reduction to Pvt. Not appealed.
901002:  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 Applicant’s continued inability or refusal to take the necessary corrective action to maintain good order and discipline. His record now contains one special court-martial, two NJP's and eight negative page 11 counseling entries.

901010:  SJA review determined the case sufficient in law and fact.

901012:  GCMCA [Commanding General, Marine Corps Base, Marine Corps Combat Development Command, Quantico, VA] 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 901023 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).

Issues 1 and 5. The Board found no indication that the Applicant was unfairly discharged. A characterization of service of under other than honorable conditions is warranted when the member's conduct constitutes a significant departure from that expected of a Marine. T he Applicant’s service was marred by award of nonjudicial punishment (NJP) on three occasions, one special court-martial and adverse counseling entries on other occasions. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for an honorable characterization of service. An upgrade would be inappropriate. Relief denied.

Issue 2. The Applicant failed to provide sufficient documentation to support his allegation that misconduct by his superiors was responsible for an improper or inequitable administrative separation of the Applicant. Relief denied.
Issues 3 and 4. The Board’s charter limits its review to a determination on the propriety and equity of the discharge. This review does not include consideration for reinstatement of lost payments, service related benefits, or benefits determined by the Veterans Administration. 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.

The Applicant’s discharge characterization accurately reflects his service to his country. Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question. No such error or inequity 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.

The Applicant 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. Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

 A. Paragraph 6210, Misconduct , of the Marine Corps Separation and Retirement Manual, ( MCO P1900.16D), 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.
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 “ afls14.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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