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USMC | DRB | 2002_Marine | MD02-00573
Original file (MD02-00573.rtf) Auto-classification: Denied


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


ex-PFC, USMC
Docket No. MD02-00573

Applicant’s Request
The application for discharge review, received 020318, requested that the characterization of service on the discharge be changed to honorable. The Applicant requested a personal appearance hearing before the board in the Washington National Capital Region. The Applicant listed the American Legion as the representative on the DD Form 293. In the acknowledgement letter to the Applicant, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030131. 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/INVOL DIS (BOARD) (MISCONDUCT) MINOR DISP INF, authority: MARCORSEPMAN Par. 6210.2.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION


Issues, as submitted
1. (Equity Issue) This former member avers that the only reason he was processed for discharge was because his supervising NCO had it in for him. Moreover, the characterization of service assigned him was too harsh because he was given poor legal counsel and because his three years of satisfactory service warranted an discharge honorable.

2. (Equity Issue) This former member further requests that the Board include provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application.
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)                910327 - 911027  COG
Period of Service Under Review :
Date of Enlistment: 911028               Date of Discharge: 950505

 Length of Service (years, months, days):
         Active: 03 06 08
          Inactive: None
Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 39
Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):
Proficiency: 4.2 (9)                       Conduct: 3.7 (9)

 Military Decorations: None
Unit/Campaign/Service Awards: NDSM, Letter of Appreciation

 Days of Unauthorized Absence: None
Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/INVOL DIS (BOARD) (MISCONDUCT)MINOR DISP INF, authority: MARCORSEPMAN Par. 6210.2.
Chronological Listing of Significant Service Events :

920608:  Counseled for deficiencies in performance and conduct. [Extreme lack of judgment and responsibility to be at the appointed place of duty at the appropriate time resulting in having another Marine to take the Transport Section.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
920617:  NJP for violation of UCMJ, Article 86:
 Specification: Failure to go at the time prescribed to morning P. T. formation at 0630, 9Jun92.
 Awarded forfeiture of $250.00 per month for 1 month, correctional custody for 30 days. Forfeiture suspended for 6 months. Not appealed.
920723:  Counseled for deficiencies in performance and conduct. [Lack of judgment and responsibility of family matters by leaving Applicant’s wife and her children without sufficient funds, means of transportation and without a permanent place to reside while he was in correctional custody unit.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
920921:  Vacate suspended forfeiture of $250.00 awarded at CO's NJP dated 17Jun92.

 920925:  NJP for violation of UCMJ, Article 86 (2 specs):
 Specification 1: Failure to go to MarBks Motor Transportation Office at 1300, 10Sep92.
 Specification 2: Failure to go to MarBks Motor Transportation Office at 0700, 11Sep92.
Awarded forfeiture of $390.00 per month for 2 months, restriction and extra duties for 45 days. Not appealed.
921229:  Applicant informed eligible but not recommended for promotion to LCpl for the month of January 1993 because of poor performance of duty and violation of the Motor Transport SOP by not using chalkboards as required.

931130:  Applicant informed eligible but not recommended for promotion to Cpl for the month of December due to lack of motivation and the desire to carry out day to day tasks, and has been repeatedly counseled on his tardiness, poor personal appearance, and attitude toward his job and the Marine Corps.

940516:  Applicant informed eligible but not recommended for promotion to Cpl for the month of June because of failure to be at the appointed place of duty at the appointed time on several occasions. With this type of performance he is not ready to take on the role of an NCO at this time.

941123:  NJP for violation of UCMJ, Article 86 (2 specs):
 Specification 1: Failure to go at the time prescribed to appointed place of duty at 0700, 8Nov94.
 Specification 2: Failure to go at the time prescribed to appointed place of duty at 0730, 8Nov94.
 Awarded forfeiture of $250.00 per month for 2 months, restriction for 60 days. Appealed.
941130:  Counseled for deficiencies in performance and conduct. [Frequent involvement with military authorities. Specific recommendations are to obey superiors, orders, and regulations.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
950216:  NJP for violation of UCMJ, Article 86:
 Specification: Absence from appointed place of duty at 1645, 2Feb95.
 Awarded forfeiture of $478.00 per month for 2 months, restriction and extra duties for 45 days, and reduction to PFC. Not appealed.
950310:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions and misconduct due to a pattern of misconduct.
950310:  Applicant advised of his rights, waived right to consult with counsel certified under UCMJ Article 27B, but elected to appear before an Administrative Discharge Board.
950310:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to minor disciplinary infractions. The factual basis for this recommendation was four nonjudicial punishments, and four official counseling's.

950414:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to minor disciplinary infractions and misconduct due to a pattern of misconduct, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

950427:  SJA review determined the case sufficient in law and fact.
950428:  GCMCA [Commander, Marine Corps Base, MCB Quantico, VA] directed the Applicant's discharge under other than 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 950505 under other than honorable conditions 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. 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 four occasions 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.
The record is devoid of evidence that the Applicant was not responsible for his conduct, that legal counsel he received concerning his administrative separation should mitigate his characterization of service, or that he should not be held accountable for his actions. Relief denied.
Issue 2. 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 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. 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, employment record, documentation of community service, certification of non-involvement with civil authorities and credible evidence of a substance free lifestyle, are examples of verifiable documentation that should have been provided to receive consideration for relief, based on post-service conduct. The Applicant’s evidence of post-service conduct was found not to mitigate the offense for which he was discharged. Relief not warranted.

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.
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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