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USMC | DRB | 2002_Marine | MD02-00607
Original file (MD02-00607.rtf) Auto-classification: Denied


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


ex-Pvt, USMC
Docket No. MD02-00607

Applicant’s Request
The application for discharge review, received 020329, 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. Subsequent to the application for review the Applicant obtained representation from Veterans of Foreign Wars.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030106. 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 (MISCONDUCT) MINOR DISP INF (BOARD WAIVED), authority: MARCORSEPMAN Par. 6210.2.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION


Issues, as submitted

 1. I was only 17 years old when I enlisted. I was to young and immature to realize my responsibilities. There was a personnel difference between me and my gunnery sergeant.
2. For 2 and a 1/2 years I was a great marine, within six months I had 3 strikes. Plus on a more personnel note my twin brother had been arrested and my fiancé and I split up. I was emotionally unprepared.
3. Since I have been discharged I've had 3 kids. I want them to be proud of me. I haven't done anything with my life sense the service. It's all I know, and all I wanted to do.
4. My grandfather was in the army. My dad was the Navy. I don't know anything else. I need to be in the service. Please help me achieve the goal of my life. To be a soldier is all I know.

 SUBMITTED BY VFW:
Applicant indicated above requested that Veterans of Foreign Wars act as counsel concerning his application. His records were reviewed on 6/20/02 and the following comments are hereby submitted: We support the Applicant's contention that his discharge be changed. We refer this case to the Board for their careful and compassionate consideration and request the Applicant's discharge be reviewed for upgrade.
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)                910815 - 920210  COG
Period of Service Under Review :
Date of Enlistment: 920211               Date of Discharge: 950210
Length of Service (years, months, days):

          Active: 03 00 00
          Inactive: None

 Age at Entry: 17                          Years Contracted: 4

Education Level: 12                        AFQT: 42

 Highest Rank: LCpl
Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.4 (8)              Conduct: 4.2 (8)
Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, LOA, AFESM (Somalia), JMUA, SSDR, Rifle Expert Badge (3 rd )

Days of Unauthorized Absence: None

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

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

 Chronological Listing of Significant Service Events :

940511:  Counseled concerning Article 86, UA from 0730-1130 on 940505.
940711:  NJP for violation of UCMJ, Article 86: UA from 0730 to 0900 on 940627 from appointed place duty.
         Award: Forfeiture of $238.00 pay per month for 1 month ($119.00 pay per month for 1 month suspended for 6 months), restriction and extra duty for 14 days (7 days suspended for 6 months). Not appealed.
940715:  Counseled for deficiencies in performance and conduct. [Writing worthless checks, failure to pay debts and unauthorized absence from appointed place of duty.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
940817:  NJP for violation of UCMJ, Article 86: UA from his appointed place of duty on 940724, to wit: 0900 restriction sign-in, violation of UCMJ, Article 91: Disrespectful in language on or about 940725 to GySgy H_ by saying "Fuck, I will be glad to get out of your damn platoon" or words to that effect, violation of UCMJ, Article 92: Violate Base Order on or about 940723 by not wearing his seat belt while driving; violation of UCMJ, Article 92: Violate Base Order on or about 940723 by not affixing his license plate on his vehicle; violation of UCMJ, Article 92: Violate Base Order on or about 940723 by driving with expired state registration.
         Award: Forfeiture of $466.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to PFC. Not appealed.

 940921:  NJP for violation of UCMJ, Article 92: Disobeying a lawful order on or about 940902 given by SgtMaj D_ to wit: not to consume any alcoholic beverage while on restriction; violation of UCMJ, Article 134: Break said restriction on or about 940902, to wit: consuming alcohol.
         Award: Forfeiture of $416.00 pay per month for 2 months (suspended for 6 months), restriction and extra duty for 45 days, reduction to E-1. Not appealed.
941019:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions.
941019:          Applicant advised of his rights and having elected to consult with counsel certified under UCMJ Article 27B, elected a hearing before an Administrative Discharge Board.
941019:  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 his three non-judicial punishments and two page 11 counseling entries which evidenced misconduct.

950111:  Unconditional waiver of Administrative Discharge Board.

950202:  SJA review determined the case sufficient in law and fact.

950208:  GCMCA [Commanding General] directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions.

950210:  Counseled for deficiencies in performance and conduct. [Conduct of a discreditable nature while on liberty hours and frequent involvement of a discreditable nature with military/civilian authorities.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 950210 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).
Issues 1-4. 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 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 Board found that the Applicant’s age, education level, and test scores qualified him for enlistment. While he may feel that his immaturity, youth, emotional disappointments, and personalities in his chain of command were factors that contributed to his actions, the record clearly reflects his disregard for the requirements of military discipline and demonstrated that he was unfit for further service. The record is devoid of evidence that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.
Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question. No such error or inequity is evident 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. 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 for more than 30 days; Article 91, disrespectful to a staff non-commissioned officer; 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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